STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In Re GERALD S. REHM, )

)

Respondent, ) CASE NO. 91-2830EC

) COMPLAINT NO. 90-50

)

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 September 4, 1991, in Tampa, Florida.

APPEARANCES

For Petitioner: Virlindia Doss

Assistant Attorney General Advocate for the Commission on

Ethics

Department of Legal Affairs The Capitol, Suite 1601

Tallahassee, Florida 32399-1050

For Respondent: Mark Herron, Esquire

J. B. Donnelly, Esquire Akerman, Senterfitt, Eidson

& Moffit

216 South Monroe Street Suite 300

Tallahassee, Florida 32301 STATEMENT OF THE ISSUES

Whether the Respondent, Gerald S. Rehm, violated Section 8(e), Article II, Constitution of the State of Florida, by representing the Top of the Bay Road Improvement Task Force for compensation before the Florida Department of Transportation during his term of office as a Florida state representative?

PRELIMINARY STATEMENT

On or about March 30, 1990, a Complaint was filed with the Florida Commission on Ethics (hereinafter referred to as the "Commission"). The Complaint was filed by Pat Imperato and contained allegations of misconduct by Gerald S. Rehm, the Respondent in this case. Based upon a review of the Complaint against the Respondent, the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate on May 22, 1990, ordering the staff of the Commission to conduct a preliminary investigation into whether the Respondent violated Section 8(e), Article II, of the Constitution of the State of Florida.

Following the Commission's investigation of the allegations against the Respondent, a Report of Investigation was released on December 12, 1990. Based

upon the Complaint and the Report of Investigation an Advocate for the Commission issued an Advocate's Recommendation on January 30, 1991. The Advocate who issued the Advocate's Recommendation determined that there was probable cause to believe that the Respondent had violated Section 8(e), Article II, of the Constitution of the State of Florida.

Based upon the Report of Investigation and the Advocate's Recommendation, the Commission issued an Order Finding Probable Cause on March 12, 1991. The Commission ordered that a public hearing be conducted.

By letter dated May 8, 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 the Respondent be conducted by the Division of Administrative Hearings.

Prior to the formal hearing the Advocate filed a Prehearing Statement. At the formal hearing, the Respondent stipulated to certain facts contained in a document attached to the Prehearing Statement. Those facts have been accepted in this Recommended Order.

At the formal hearing the Advocate presented the testimony of Jean Dorzback, the Respondent, Teresa Estes, James Edwards, Ronald Pscion, John DeWinkler, Joseph Brandenburg, Larry Jones and James Kennedy. The Advocate also offered six exhibits. All of those exhibits, except Advocate's exhibit 6, were accepted into evidence. Three of the exhibits consisted of the deposition testimony of Paul Spina, Derrick Vardy and the Respondent.

The Respondent testified on his own behalf. The Respondent did not offer any exhibits into evidence.

The parties have filed proposed recommended orders which contain 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

1. The Respondent.

   
   

   1. The Respondent, Gerald S. Rehm, served as Mayor of the City of Dunedin, Florida, from 1965 to 1972.

      
      

   2. The Respondent served in the Florida Senate from 1980 to 1984. Among other duties, the Respondent served on the Senate Transportation Committee.

      
      

   3. The Respondent served as a Florida state representative from November 4, 1986, through November 6, 1990. (Stipulated Fact).

      
      

   4. At all times relevant to this proceeding, the Respondent served as a public official.

      
      

   5. During the time that the Respondent served as a Florida state representative, he served on the House Transportation Committee and House Appropriations Committees. At some time during his service as a Florida state representative the Respondent asked to be removed from the House Transportation Committee. This request was granted.

2. The Top of The Bay Road Improvement Task Force.

   
   

   1. The Top of the Bay Road Improvement Task Force (hereinafter referred to as the "Task Force"), was a private, not-for-profit organization incorporated on June 14, 1985. It was dissolved in late 1990. (Stipulated Fact).

      
      

   2. The original and primary purpose of the Task Force was to expedite the widening of State Road 580/584 (hereinafter referred to as the "580/584 Project"). The Task Force endeavored to obtain donations of right-of-way along the 580/584 Project corridor to accomplish its goal. Over time, the purpose of the Task Force expanded to include the tracking of road development in northern Hillsborough and Pinellas counties, to the extent that other roads and projects impacted on the 580/584 Project. (Stipulated Fact).

      
      

   3. The 580/584 Project included roads of Hillsborough and Pinellas Counties and the State of Florida. Therefore, Hillsborough and Pinellas Counties and the State were involved in the 580/584 Project. The Task Force hoped to insure that all three government bodies were communicating about the 580/584 Project.

      
      

   4. The Task Force believed that the 580/584 Project would not be completed until as late as the year 2010. By providing coordination and obtaining donations of right-of-way along the 580/584 Project corridor, the Task Force hoped to facilitate the completion of the 580/584 Project sooner.

      
      

   5. The Task Force was aware that if needed right-of-way along the 580/584 Project corridor was donated, it could take only a day to complete the donation instead of taking as long as two years to acquire the same right-of-way by eminent domain. Acquiring right-of-way along the 580/584 Project corridor by eminent domain was inconsistent with the purpose of the Task Force.

      
      

   6. The poor condition of highways 580 and 584 was adversely affecting business interests along these highways. The Task Force was formed to correct this problem as soon as possible. The completion of the 580/584 Project was also necessary for some land owners along the 580/584 Project corridor to be able to obtain DRI (Development of Regional Impact) permits necessary to develop their property.

      
      

   7. When first conceived, it was believed that the Task Force would be needed only for a short period of time. The Task Force was continued beyond the period of time originally contemplated because it was believed that the government agencies involved would believe that they were being "watched" if the Task Force remained active.

      
      

   8. The Task Force received most of its funding from large land owners and developers. (Stipulated Fact). About 12 to 15 major landowners, businesses and developers provided most of the Task Force's funding. The goals of the Task Force were the goals of those who contributed the Task Force's funds.

      
      

3. The Respondent's Involvement with the Task Force.

   
   

   1. The Respondent served as the executive director of the Task Force from its inception in 1985 until November 13, 1989. (Stipulated Fact).

      
      

   2. The Respondent's involvement with the Task Force began before, and continued after, he became a Florida state representative.

   3. The Respondent's duties as executive director of the Task Force included working with the Florida Department of Transportation (hereinafter referred to as the "Department") to ensure that donations of right-of-way adjacent to State Road 580/584 met the Department's legal and technical requirements. (Stipulated Fact).

      
      

   4. The Respondent's duties as executive director of the Task Force also included gathering information about the Department's progress and decisions pertaining to the 580/584 Project, so that the proper right-of-way donations could be obtained. (Stipulated Fact).

      
      

   5. The Respondent characterized his relationship with the Task Force as that of a "consultant."

      
      

   6. The Respondent spoke with the Task Force's general counsel prior to becoming a Florida state representative. Based upon his discussion with the general counsel, the Respondent concluded that he had not been doing anything on behalf of the Task Force that would cause a conflict of interest if he continued his involvement after becoming a Florida state representative.

      
      

   7. The nature of the Respondent's activities on behalf of the Task Force did not materially change after he became a Florida state representative. He continued to perform his duties in an effort to assist the Task Force to achieve its goals of seeing a quick conclusion of the 580/584 Project which was in the interest of the Task Force and those who had created it, and the other goals of the Task Force.

      
      

   8. The Respondent's duties as executive director of the Task Force also included production of what were known as "Task Force Monitor Maps." A man by the name of Dick Vaugier, however, also was involved in the preparation of the Task Force Monitor Maps and may have actually performed the physical creation of the maps. The maps tracked the status of all road projects and provided projected completion dates and other information of interest to the Task Force. (Stipulated Facts).

      
      

   9. Some of the information required to produce the Task Force Monitor Maps was obtained by the Respondent from the Department. (Stipulated Fact).

      
      

   10. Task Force Monitor Maps underwent several revisions as road projects progressed. (Stipulated Fact).

       
       

   11. The Respondent provided copies of the completed Task Force Monitor Maps to the Department. (Stipulated Fact). Copies of the maps were also kept at an office of the Respondent where interested persons could review them.

       
       

4. The Respondent's Contacts with the Department of Transportation.

   
   

   1. During the period of time that the Respondent served in the Florida House of Representatives, he had numerous contacts by telephone and in person with employees of the Department concerning the 580/584 Project.

      
      

   2. The Respondent had three contacts with Gene Dorzback, Department Assistant Project Development and Environmental Administrator, concerning the 580/584 Project. Ms. Dorzback worked in the Department's District 7. Ms. Dorzback worked for the Department from May, 1988, to October, 1990. All of her

      contacts with the Respondent were during the period of time that he was a Florida state representative.

      
      

   3. The Respondent discussed the 580/584 Project with Ms. Dorzback on June 15, 1989, during a public hearing on the 580/584 Project. During this conversation, the Respondent expressed his disapproval and frustration over the alignment of the 580/584 Project which the Department had established prior to the public meeting and which the Department had discussed with the public during the public hearing. The Respondent also questioned Ms. Dorzback about why the Department had decided on the alignment presented.

      
      

   4. Alignment of a road project involves the decision of which side(s) of the road additional right-of-way necessary to complete a road-widening project will be taken from and the amount of right-of-way necessary. Alignment of the 580/584 Project was determinative of the right-of-way which would have to be donated in order to achieve the Task Force's goals.

      
      

   5. The Respondent's concern over the alignment for the 580/584 Project was over the fact that the alignment would require obtaining right-of-way from property owners that had not agreed to donate right-of-way, and ignored some property owners that were willing to donate right-of-way. Although the Respondent did not specifically suggest that a particular alignment be used by the Department, he did suggest that the Department consider using the right-of- way which property owners were willing to donate. In order for the Department to accept this suggestion the Department would have been required a change the alignment of the 580/584 Project.

      
      

   6. At some time after the June 15, 1989, public hearing, the Respondent also telephoned Ms. Dorzback and inquired whether she had been provided with certain survey information concerning the 580/584 Project from the District 7 Survey Administrator, Larry Jones. The information involved property of owners who were willing to donate right-of-way. Although the Respondent did not specifically suggest any particular alignment, it was evident from the Respondent's comments to Ms. Dorzback that he believed that accepting donated right-of-way would speed up completion of the 580/584 Project. Ms. Dorzback explained to the Respondent why she did not believe that completion of the project would necessarily be speeded up by accepting donated right-of-way.

      
      

   7. The third conversation Ms. Dorzback had with the Respondent involved an inquiry from the Respondent concerning whether she had received the survey information he had previously inquired about.

      
      

   8. At the time of the Respondent's contacts with Ms. Dorzback, she was aware that he was a Florida state representative. Ms. Dorzback was consequently intimidated by the Respondent's criticisms. She was not initially aware of his connection with the Task Force.

      
      

   9. The Respondent also had contacts with Teresa Estes. Ms. Estes was a Project Manager in the Department's District 7 Project Development and Environmental Section. The Respondent's contacts with Ms. Estes occurred approximately once every three or four months over a two-year period of time when the Respondent was a Florida state representative.

      
      

   10. Some of the contacts Ms. Estes had with the Respondent involved the 580/584 Project. The contacts took place in the Department's offices. During the Respondent's contacts with Ms. Estes, he inquired about, and they discussed, the progress on an environmental study required for the 580/584 Project.

   11. The Respondent requested information from Ms. Estes concerning the 580/584 Project, which she provided to him.

       
       

   12. The approximately $210,000.00 cost of the environmental study for the 580/584 Project was paid for by two corporations, the Millford Corporation and the Hollywood Corporation. The weight of the evidence failed to prove if these corporations were involved with the Task Force.

       
       

   13. Ms. Estes knew that the Respondent was a Florida state representative when some of the contacts she had with him occurred.

       
       

   14. The Respondent informed Ms. Estes that he was a Florida state representative, that he was interested in the 580/584 Project and that he worked with the Task Force. The evidence, however, failed to prove when the Respondent told Ms. Estes that he worked with the Task Force.

       
       

   15. The Respondent also had at least three or four contacts with James Edwards. Mr. Edwards was the District 7 Public Transportation Manager for the Department from February, 1987, through the present.

       
       

   16. The Respondent contacted Mr. Edwards by telephone or in person to inquire about the status of the 580/584 Project, right-of-way donations, and other issues or aspects germane to specific projects in the area of the 580/584 Project. Mr. Edwards had at least one other meeting with the Respondent which did not involve the 580/584 Project.

       
       

   17. Mr. Edwards had to gather information concerning the 580/584 Project prior to his meetings with the Respondent and he provided that information to the Respondent.

       
       

   18. The Respondent also met three or four times with Ronald G. Pscion, the Department's District 7 Director of Planning and Programs.

       
       

   19. During one of the Respondent's contacts with Mr. Pscion, the Respondent inquired about the status of the 580/584 Project's work program and how the work on the 580/584 Project was scheduled. Mr. Pscion knew that the Respondent was working with property owners that wanted to donate right-of-way for the 580/584 Project and that one donation was dependent on a particular construction job on the 580/584 Project being completed by fiscal year '91-92.

       
       

   20. During another contact with Mr. Pscion, the Respondent wanted to insure that the Department was aware of other developments in the area of the 580/584 Project which could impact the project. The Respondent wanted to be sure that traffic in the area could be handled by the 580/584 Project.

       
       

   21. During a third conversation with Mr. Pscion, the Respondent inquired about the status of the 580/584 Project.

       
       

   22. The Respondent requested that Mr. Pscion let him know if there was any change in the work program for the 580/584 Project.

       
       

   23. The Respondent provided a copy of the Task Force Monitor Map prepared for the Task Force to Mr. Pscion.

       
       

   24. The Respondent also had contacts with Mr. Pscion concerning other road projects of the Department.

   25. Mr. Pscion was aware that the Respondent was a Florida state representative but was not aware of his relationship with the Task Force.

       
       

   26. The Respondent also had more than ten contacts with John H. DeWinkler, the Department's District 1 Director of Production. Mr. DeWinkler worked with the Respondent to achieve the Task Force's objective of trying to speed up the 580/584 Project without having to go through a lengthy process to complete the project. The property owners that were willing to donate right-of-way were entitled to certain rights. Mr. DeWinkler wanted to insure that those rights were not violated.

       
       

   27. Contacts concerning the 580/584 Project were made by the Respondent with Mr. DeWinkler at or near the time that what is now the Department's District 7 was separated from the Department's District 1. That split occurred in approximately October, 1988, after the Respondent became a Florida state representative. Therefore, some of the Respondent's contacts with Mr. DeWinkler took place when the Respondent was a Florida state representative.

       
       

   28. The Respondent had at least two contacts concerning the 580/584 Project with Joseph R. Brandenburg. These contacts occurred while the Respondent was a Florida state representative. Mr. Brandenburg was a Department District 7 Right-of-Way Surveyor from September, 1986, through July, 1988.

       
       

   29. One contact between the Respondent and Mr. Brandenburg involving the 580/584 Project was a meeting which was also attended by Mr. DeWinkler and Derrick Vardy, the Department's District 1 Right-of Way Administrator. During this meeting the Respondent inquired about areas along the 580/584 Project corridor for which right-of-way donations were still needed. As a result of this meeting, Mr. Brandenburg was to provide right-of-way maps and property legal descriptions concerning the 580/584 Project to the Respondent.

       
       

   30. The other contact which Mr. Brandenburg had with the Respondent was a telephone conversation during which the Respondent inquired about the information he was to be provided as a result of the meeting described in finding of fact 53.

       
       

   31. Mr. Brandenburg, subsequent to his two contacts with the Respondent, provided the right-of-way maps and property legal descriptions concerning the 580/584 Project to the Respondent. This information was to facilitate the donations of certain right-of-ways along the 580/590 Project corridor.

       
       

   32. Between February, 1988, and February, 1989, the Respondent also had three contacts with Larry R. Jones. Mr. Jones at that time was Department District 7 Right-of-Way Surveyor.

       
       

   33. The first contact between the Respondent and Mr. Jones took place shortly after Mr. Jones was employed by the Department. Mr. Jones and the Respondent argued about the width of the right-of-way needed for the 580/584 Project. Their difference of opinion was clarified by Mr. Jones' supervisor.

       
       

   34. The second contact between the Respondent and Mr. Jones occurred after a telephone call from the Respondent informing Mr. Jones that he was going to come by and pick up title search information concerning the 580/584 Project which was being provided by Pinellas County, Florida. The Respondent did come by and pick up the information.

   35. During the third contact between the Respondent and Mr. Jones, they discussed the impact of Murphy Act Deeds on the 580/584 Project. The Respondent suggested that any interest the State might have pursuant to the Murphy Act Deeds should be released to property owners who donated right-of-way for the 580/584 Project. Mr. Jones explained to the Respondent why this should not be done. Mr. Jones testified as to what a Murphy Act Deed, which is also known as "TIITF Reservation", is and the reason why the Department could not take the action the Respondent was suggesting, as follows:

       
       

       1. Basically a TIITF Reservation was something out of the '30's and '40's. If a tax collector seized a piece of property and sold it for the back taxes, they would reserve a strip of land for road purposes. And in this case 584 had some of these TIITF Reservations on them. That land is usable by the State Road Department. We have to go to DNR to get an easement, not the property owner. We don't pay for them.

          And by releasing the remainder over from what the PD&E study called for, we'd be in a position if we had to have more right-or-way, we would be back in an acquisition condemnation scenario, we'd be dealing with the property owners instead of DNR.

          
          

          Lines 2-15, page 103, Transcript of the September 4, 1991, Formal Hearing.

          
          

   36. At the time of the contacts with the Respondent, Mr. Jones was aware that the Respondent was a Florida state representative. The Respondent also represented to Mr. Jones that he was working for the Task Force.

       
       

   37. James G. Kennedy was the District Secretary for the Department's District 7 from 1987 until May, 1990. From 1984 until 1987, Mr. Kennedy was the Urban Office Director for the Department's District 1.

       
       

   38. Prior to and after the Respondent became a Florida state representative, Mr. Kennedy had numerous contacts with the Respondent about various transportation matters, including the 580/584 Project.

       
       

   39. During the Respondent's contacts with Mr. Kennedy after the Respondent became a state representative, the Respondent inquired about the 580/584 Project. In particular, the Respondent asked for information concerning the manner in which the Department acquired right-of-way and the progress on the project.

       
       

   40. Mr. Kennedy made his staff available to the Respondent. The degree of support given to the Respondent was in part attributable to the Respondent's position as a Florida state representative. The degree of contact Mr. Kennedy and his staff had with the Respondent was significant enough that Mr. Kennedy reported the situation to the Department's Secretary at the time, Kay Henderson. Secretary Henderson merely suggested that Mr. Kennedy use his best judgement to handle the matter.

       
       

   41. Mr. Kennedy was aware of the Respondent's involvement with the Task Force. Mr. Kennedy had been told by the Respondent that the Respondent was the leader of the Task Force. Mr. Kennedy was concerned enough about the

       Respondent's relationship with the Task Force that he asked the Respondent whether the Respondent thought there was a conflict of interest with his position as a Florida state representative.

       
       

   42. Mr. Kennedy was aware that the purpose of the Task Force was to obtain donations of right-of-way along the 580/584 Project corridor to speed up the completion of that project.

       
       

   43. Mr. Kennedy made his Department available to the Respondent to assist the Respondent in his efforts to insure that the donation of right-of-way along the 580/584 Project corridor was handled properly.

       
       

   44. The Respondent provided Mr. Kennedy with up-to-date Task Force Monitor Maps.

       
       

   45. Derrick Vardy was a Department District 1 Right-of-Way Administrator. Mr. Vardy had two telephone conversations with the Respondent and approximately two or three face-to-face meetings with him concerning the 580/584 Project. Some of these contacts occurred in August, 1987.

       
       

   46. Mr. Vardy attempted to assist the Respondent with documents needed to acquire donations of right-of-way for the 580/584 Project.

       
       

   47. All of the information which the Respondent obtained from employees of the Department was information which was available to the public. The information was obtained, however, on behalf of the Task Force and not in the Respondent's capacity as a Florida state representative or as a member of the public.

       
       

   48. The Respondent's contacts with the Department while he was a Florida state representative were made to further the goals of the Task Force and were made on behalf of the Task Force.

       
       

5. Compensation.

1. Beginning in 1985, when the Respondent began to perform services for the Task Force, and continuing until November, 1986, the Respondent was paid a consulting fee for his services as executive director of the Task Force.

   
   

2. After the Respondent's election as a Florida state representative in November, 1986, the payments from the Task Force that had been made directly to the Respondent were made to Gerald S. Rehm and Associates, Inc.

   
   

3. Gerald S. Rehm and Associates, Inc., is a closely held corporation, the stock of which was owned by the Respondent.

   
   

4. From 1985 until sometime during 1987, the Task Force paid $2,000.00 a month to the Respondent and later Gerald S. Rehm and Associates, Inc.

   
   

5. The amount paid by the Task Force to Gerald S. Rehm and Associates, Inc., was increased in 1987 to $3,000.00 and the corporation began "absorbing expenses" according to the Respondent.

   
   

6. The payments to Gerald S. Rehm and Associates, Inc., were made in payment for services of the Respondent. Those services were the same services the Respondent performed for which payments were made directly to the Respondent before he become a Florida state representative.

7. The weight of the evidence failed to prove that the payments made by the Task Force to Gerald S. Rehm and Associates, Inc., were merely reimbursements of expenses of the corporation.

   
   

8. The Respondent testified that the payments his corporation received while he was a Florida state representative were reimbursements of expenses. This testimony was not credible. The Respondent characterized the payments he had received prior to his election as a Florida state representative as consulting fees. He did not characterize the payments he received before his election as a reimbursement of expenses. The Respondent admitted that his services were essentially the same before and after he became a Florida state representative. Therefore, since his services did not change and the amount of the payments did not change after he became a Florida state representative, it is not credible to believe that the payments after he became a Florida state representative were merely intended as a reimbursement of expenses. Additionally, the weight of the evidence failed to prove that there was any connection between the expenses that the Respondent or his corporation incurred and the amount of the payments he or his corporation received. Finally, the Respondent testified that the increase from $2,000.00 per month to $3,000.00 per month which occurred in 1987 was to cover expenses. Therefore, based upon the Respondent's own testimony, only $1,000.00 of the $3,000.00 monthly payments were for expenses.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction and Burden of Proof.

      
      

9. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989). Section 8(f), Article II, of the Constitution of the State of Florida, and Rule 34-5.0015, Florida Administrative Code, authorize the Florida Commission to conduct investigations and make public reports on complaints concerning violations of Section 8(f), Article II, of the Constitution of the State of Florida.

   
   

10. 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: that the Respondent violated Section 8(f), Article II, of the Constitution of the State of Florida. Therefore, the burden of proving the elements of the Respondent's alleged violation was on the Commission.

    
    

    1. The Respondent's Alleged Violation of Section 8(e), Article II, of the Constitution of the State of Florida.

       
       

11. Section 8(e), Article II, of the Constitution of the State of Florida, provides, in pertinent part, the following:

    
    

    No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals.

12. A violation of Section 8(e), Article II, of the Constitution of the State of Florida, requires proof of the following elements:

1. The Respondent must have been a member of the legislature;

2. The Respondent must have represented another person or entity; and

3. The Respondent's representation of another person or entity must have been before a state agency other than a judicial tribunal; and

4. The Respondent's representation of another person or entity must have been for compensation.

1. The First Element; Was the Respondent a Member of the Legislature.

85. The evidence proved, and the parties stipulated, that the Respondent was elected to, and did serve as a member of the Florida House of Representatives from November 4, 1986, through November 6, 1990. The first element has, therefore, been proved. In determining whether the Respondent violated the other elements of Section 8(e), Article II, of the Constitution of the State of Florida, it is the Respondent's activities during the period of time that he served as a Florida state representative that will be determinative.

2. The Second Element: Did the Respondent Represent Another Person or Entity?

1. The terms "represent" or "representation" are defined in Section 112.312(17), Florida Statutes, to mean:

   
   

   . . . actual physical attendance on behalf of a client in an agency proceeding, the writing, of letters or filing of documents on behalf of a client, and personal communications made with the officers or

   employees of any agency on behalf of a client.

   
   

   This definition specifically applies to the use of such terms under Section 8(e), Article II, of the Constitution of the State of Florida. Section 112.312, Florida Statutes.

   
   

2. The weight of the evidence proved that the Respondent performed services while serving as a Florida state representative on behalf of the Task Force sufficient to constitute representation within the definition of that term provided in Section 112.312, Florida Statutes, and as used in Section 8(e), Article II, of the Constitution of the State of Florida.

3. The Third Element: Was the Respondent's Representation Before a State Agency Other than a Judicial Tribunal?

1. An "agency" is defined in Section 112.312(2), Florida Statutes, as follows:

   
   

   "Agency" means any state, regional, county,

   local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.

   
   

2. The Department comes with the definition of "agency" as that term is used in Section 8(e), Article II, of the Constitution of the State of Florida.

   
   

3. At issue in this case is whether the activities of the Respondent before the Department while he served as a Florida state representative constituted representation before the Department. The Respondent has argued that all he did was to seek "public information as to the proper procedures to be followed with respect to the donation of right-of-way and the status of the SR 580/584 project." Based upon this characterization of the Respondent's activities and the Respondent's failure to "advocate a position of the Task Force for any particular alignment of SR 580/584 or for any particular action by FDOT with respect to the project" the Respondent has argued that the Respondent did not represent any person or entity before any state agency.

   
   

4. The difficulty with the Respondent's position is that his characterization of his activities before the Department as merely information gathering is not supported by the weight of the evidence. The Respondent's inquiries and contacts with Department employees were intended to insure that the Department knew that they were being "watched", and promoted coordination between the Department and Hillsborough and Pinellas Counties. The Respondent's contacts were also intended to promote the primary goal of the Task Force which was to insure that the 580/584 Project continued to progress as quickly as possible. The Respondent's activities were more than merely gathering public information.

   
   

5. Additionally, the Respondent's position is rejected because the weight of the evidence proved that the Respondent's activities, regardless of their characterization, come within the constitutional prohibition against representing others before a state agency. The constitutional prohibition at issue in this case is not limited only to instances where a member of the legislature advocates a position or attempts to force a state agency to take a position or action favorable to another person or entity from whom the legislature receives compensation. Therefore, it is concluded that the Respondent's activities before the Department, which were made in an effort to insure the accomplishment of the goal of the Task Force that the 580/584 Project was completed as soon as possible, are sufficient to constitute representation of another person or entity before a state agency. See Commission on Ethic's Opinion ("CEO") 77-168. See also CEO 88-68 and CEO 81-24.

   
   

6. In support of his position, the Respondent has relied upon CEO 82-83 (cited as 82-84 in the Respondent's proposed recommended order). In CEO 82-83 the Commission indicated that the filing of articles of incorporation or documents under the Uniform Commercial Code with the Department of State does not create an opportunity to misuse a legislator's public office or create an appearance of improper influence. That is not the type of activity (purely routine, ministerial acts) that the Respondent was engaged in this case. In this case, the Respondent engaged in activities intended to promote the goals of the Task Force and not merely routine, ministerial matters required by law.

7. The evidence proved that the Task Force was interested in moving the 580/584 Project along to completion as soon as possible in order to benefit the persons and entities which caused the Task Force to be formed. The evidence also proved that the Task Force was willing to pay the Respondent, directly or indirectly, to achieve its goals. Finally, the evidence proved that the Respondent's activities were intended to assist the Task Force in achieving its goals. Therefore, the Respondent's activities, whether characterized as gathering information, letting the Department know it was being "watched" or advocating the goals of the Task Force, were carried out on behalf of the Task Force and in furtherance of its goals.

4. The Fourth Element: Was the Respondent's Representation For Compensation?

1. The evidence proved that during the time that the Respondent represented the Task Force before the Department and the Respondent was a Florida state representative, the Task Force paid either $2,000.00 per month or

   $3,000.00 per month to Gerald S. Rehm and Associates, Inc. These payments had previously been made directly to the Respondent. The evidence also proved that the payments were made before and after the Respondent's election as a Florida state representation for the Respondent's activities on behalf of the Task Force. Finally, the evidence proved that the Respondent was the sole shareholder of the stock of Gerald S. Rehm and Associates, Inc. Based upon these facts, it is concluded that the Respondent was compensated by the Task Force while serving as a Florida state representative for his representation of the Task Force before the Department.

   
   

2. The Respondent has argued that the payments made by the Task Force were not "compensation" but were instead reimbursements of expenses. In support of this position, the Respondent has cited CEO 80-41, CEO 83-16 and CEO 84-115. These advisory opinions indicate that reimbursements for out-of-pocket travel, food, lodging and similar expenses do not constitute "compensation". The Respondent has argued that the Respondent's testimony that the payments his corporation received were only received in payment of expenses incurred on behalf of the Task Force constitutes unrefuted evidence proving that he did not receive any "compensation" from the Task Force.

   
   

3. The Respondent did testify that the payments were merely reimbursements of expenses. This testimony is, however, not credible. The Respondent testified that the payments prior to his election as a Florida state representative were a consulting fee. He did not characterize the payments he received before his election as a reimbursement of expenses. He also testified that his services were essentially the same before and after he became a Florida state representative. Therefore, since his services did not change and the amount of the payments did not change after he became a Florida state representative, it is not credible to believe that the payments after he became a Florida state representative were merely intended as a reimbursement of expenses. Additionally, there was no evidence that indicated that there was any direct connection between the expenses that the Respondent or his corporation incurred and the amount of the payments he or his corporation received.

Finally, the Respondent testified that the increase from $2,000.00 per month to

$3,000.00 per month was to cover expenses. Therefore, based upon the Respondent's own testimony, only $1,000.00 of the monthly payments were for expenses.

5. Conclusion.

1. Based upon the foregoing, it is concluded that the Respondent was compensated for representing another person or entity, the Task Force, before a state agency, the Department, while serving as a member of the Florida House of Representatives. Therefore, it is concluded that the Respondent violated Section 8(e), Article II, of the Constitution of the State of Florida. These conclusions are made whether the "clear and convincing evidence" standard or the "preponderance of the evidence" standard is applied to the evidence. Compare Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); and Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988); with In re: Blackburn, 13 FALR 1859 (Commission on Ethics 1989).

   
   

   1. Penalty.

   
   

2. At the time that the Respondent violated Section 8(e), Article II, of the Constitution of the State of Florida, the Constitution provided no penalties for violations of Section 8(e), Article II, of the Constitution of the State of Florida. No violation of Section 112.3141, Florida Statutes, for which a penalty may have been imposed, has been alleged against the Respondent. Therefore, no penalty may be imposed upon the Respondent in this case.

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, Gerald S. Rehm, violated Section 8(e), Article II, of the Constitution of the State of Florida, as alleged in Complaint No. 90-50.

DONE and ENTERED this 13th day of November, 1991, 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 13th day of November, 1991.

APPENDIX TO 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

Estes was employed with the Department. It is not, therefore, possible to tell whether his contacts with Ms. Estes were during his term as a Florida state representative based upon when he served. Ms. Estes did testify, however, that she knew the Respondent was a Florida state representative. Based upon this testimony, it has been concluded that the Respondent had contacts with Ms. Estes while he was a Florida state representative.

16 See 39-41.

17 Not relevant. The evidence failed to prove who the "developer" was or what relationship, if any, the "developer" had with the Task Force or the Respondent.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 3. The evidence proved that the Respondent dropped the title of "President." The evidence also proved that the Respondent's duties after becoming a Florida state representative did not materially change.

2 14.

3 6.

4 7.

5 7 and 10.

6 See 7.

7 15-16.

8 The meeting referred to in this proposed finding of fact is not relevant. It occurred before the Respondent became a Florida state representative. See 50, 52-53 and 69.

9 17.

10 See 25-27 and 30-32. See 28-29 with regard to the 6th and 7th sentences.

11 33-34 and 36.

12 39-40 and 71.

13 52-55. The last sentence is not relevant.

14 42, 48 and 71. See 43-45.

15 56-59.

1. 61-63 and 71. The 4th and 5th sentences are generally true, but see 64-67.

2. Although correct (except the value of the right-of-way, which the weight of the evidence failed to prove), not relevant to this proceeding.

18 See 21-24. But see 16-20.

1. 22 and hereby accepted.

2. 47, 68 and hereby accepted.

21 13.

22 74-77.

1. 74. The 2d sentence is not supported by the weight of the evidence; see 80.

2. 74. See 25-71. The last two sentences are not supported by the weight of the evidence.

3. Not supported by the weight of the evidence. See 19.

COPIES FURNISHED:

Virlindia Doss

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, FL 32399-1050

Mark Herron, Esquire Bonnie J. Williams

J. B. Donnelly, Esquire Executive Director Akerman, Senterfitt, Eidson Commission on Ethics

& Moffit The Capitol, Room 2105

216 South Monroe Street Post Office Box 6

Suite 300 Tallahassee, FL 32302-0006 Post Office Box 10555

Tallahassee, FL 32302-2555

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.

Docket for Case No: 91-002830EC

Orders for Case No: 91-002830EC