STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SERVICE VENDING OF TALLAHASSEE, ) INC., ET AL., )

)

Petitioners, )

)

vs. ) CASE NO. 79-2171

) DEPARTMENT OF GENERAL SERVICES, )

)

Respondent, )

and )

)

STATE BOARD OF EDUCATION, )

)

Intervenor. )

)

ORDER

1. Ruling on Respondent's Motion to Disqualify was reserved by Order, dated February 21, 1980, pending the submission of additional matters, which has now been accomplished.

   
   

2. The motion seeks to have the Hearing Officer disqualify Petitioners' counsel, John A. Barley, and the firm of Barley and Corrigan, Tallahassee, Florida, from representing or giving legal assistance to Petitioner Service Vending of Tallahassee, Inc., in this cause. The Petitioner responded in opposition to the motion and filed an affidavit of said counsel in support thereof.

   
   

3. The ground for Respondent's motion is that Mr. Barley is the former general counsel for Respondent Department of General Services and, while acting in this capacity, gave legal advice to Respondent in 1977 and 1978 as to the form and legality of two addenda to a 1975 food service contract between Respondent and Petitioner for the Carlton Building in Tallahassee. The matter in dispute in this administrative proceeding concerns non-renewal of the same contract by the Respondent when it expired in December 1979.

   
   

4. Respondent urges that its former counsel be disqualified in this case from representing a party whose interests are adverse to its own in the matter under consideration. Petitioner, however, maintains that its counsel should not be disqualified because he had received consent of Respondent's present general counsel to represent the Petitioner in this cause, and because, in any event, the functions which Mr. Barley performed for Respondent with regard to the contract in question were not "substantially related" to the issues in controversy in this proceeding. Petitioner further maintains that Respondent is not in a position to contend that Mr. Barely received any confidential attorney/client communications during the course of his employment by Respondent, by virtue of Chapters 119 and 286, Florida Statutes, which deal with public access to government meetings and records.

5. Oral argument was presented by counsel for the parties at a hearing on February 21, 1980. Upon inquiry by the Hearing Officer, none of the parties indicated a desire or need for an evidentiary hearing on the motion. Accordingly, ruling herein is predicated upon the pleadings and exhibits thereto, and oral argument of counsel. Reference has been made to certain testimony contained in depositions of Dorian Beasley and Mary V. Goodman taken during the prehearing discovery process, to clarify matters alleged in the motion and at the hearing by Petitioner and Respondent.

   
   

6. Mr. Barley served as general counsel for Respondent from October 1, 1976, through October 12, 1978. He states in his affidavit that the only connection he had with the contract in question during that period was to provide suggested modifications and additions to drafts of the two contract addenda submitted to him by Mrs. Goodman, the chief of Respondent's Bureau of Property Management. These documents, both dated February 10, 1978, contain Mr. Barley's signature under the words "Approved as to form and legality, subject only to full and proper execution by the parties." It is undisputed that these contractual modifications were made to adjust the rental payments to Respondent by Petitioner under Article 25 of the Food Service Contract to reimburse Petitioner for equipment items replaced by the Petitioner with the consent of Respondent. The affidavit further states that at no time during his employment period did Respondent disclose any "confidences" concerning the issues in controversy nor did he gain any knowledge or information which might be reasonably classified confidential or secret.

   
   

7. Although the petition in this case was filed with Respondent in October 1979 by the contractor and other Petitioners, Mr. Barley did not enter an appearance until November 6, 1979. It is undisputed that about a month thereafter, in a telephone conversation between Barley and Thomas M. Bensen, Respondent's general counsel, the latter interposed no objection to Barley's representation of the Petitioners.

   
   

8. The contract in question, which had been executed on July 30, 1975, but made effective as of January 1, 1975, was for a period of one year ending December 31, 1975, with provision in paragraph 20 thereof that "If agreeable to both parties, the contract may be extended for successive one (1) year periods." The contract was thereafter renewed from year-to-year without formal request by either party. By letter of September 21, 1979, Respondent advised Petitioner that it would be unable to renew the contract at time of expiration because the Division of Blind Services had made known its desire to assume operation of the cafeteria in the Carlton Building on January 1, 1980, pursuant to Chapter 79- 370, Laws of Florida. The petition alleged that Respondent failed to renew the contract based on an erroneous interpretation of Chapter 79-370 that the Division of Blind Services had a right to assume operation of the food service facility in the Carlton Building. Petitioner further alleged that it had incurred substantial expense in procuring necessary equipment and personnel to operate the cafeteria and that such expenses were incurred with the expectancy of being able to operate the cafeteria for an indefinite period of time as long as it performed its obligations under the contract. Petitioner filed an amended petition on December 21, 1979. On January 21, 1980, Petitioner filed a second amended petition pursuant to authority granted at a prehearing conference on January 8 to allege newly discovered facts to show that subsequent to the execution of the contract, the parties had orally agreed to extend the term for an indefinite number of successive one-year terms with the understanding that the contract would not be terminated unless either party substantially defaulted or, upon notice, failed or refused to cure the same within a reasonable time.

   At the hearing on the motion under consideration on February 20, 1980, Mr.

   Barley represented that the purported oral agreement had come about as the result of an understanding between the parties prior to January 1, 1975, which was reaffirmed in conversations between Petitioner's principal and Respondent's bureau chief, Mrs. Goodman, and their representatives, and by a subsequent course of dealing. Petitioner was under the impression that if it purchased certain equipment that it would receive an immediate credit against rent under Article 25 of the contact. However, it was not until Addendum No. 1 to the contract was executed that Petitioner began accruing a rent reduction as reimbursement for its expenditures.

   
   

9. Canon 9 of the Code of Professional Responsibility providing that "A lawyer should avoid even the appearance of professional impropriety."

   
   

   Disciplinary Rule 9-101(B) states:

   
   

   A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.

   
   

   In determining the propriety of an attorney acting adversely to a former client in his representation of his present client, it has been stated:

   
   

   The test is whether, in forwarding the interest of his new client, the attorney will be required to do anything which will injure his former client with regard to any matter in which he formerly represented him, or will be required to use against his former client any knowledge or information acquired through their former connection. 4 Fla. Jr 2d, Attorney and Client Section 128.

   
   

   In a recent case, the Fifth District Court of Appeals, in construing Canon 4 concerning the attorney's obligation to preserve the confidences and secrets of a client, held that the existence of the attorney/client relationship raises an irrefutable presumption that confidences were disclosed by the client to the former attorney. Sears Roebuck and Company v. Stansbury, 374 So 2d 1051 (Fla. 5th DCA 1979). In acknowledging that the disqualification of counsel is an extremely serious matter, the Court said:

   
   

   Thus, before a client's former attorney will

   be disqualified from representing a party whose interests are adverse to the former clients, the former client must show that the matters embraced in the pending suit are substantially related to the matters or cause of action wherein the attorney previously represented him. . . .

   
   

10. In the instant case, it is clear that Mr. Barley's current representation of Petitioner involves a matter "substantially related" to a matter wherein he previously represented Respondent, i.e., the identical contract upon which he previously rendered legal advice to such former client while serving as general counsel. In fact, Petitioner's present contentions concerning the existence of oral modification of the written contract are inextricably entwined with the subject matter of Addendum No. 1 which was reviewed and revised by Mr. Barley. In such a situation, it is unnecessary for

    the moving party to establish that confidences were actually received by the former counsel from his client or revealed to the new client. It is sufficient that Mr. Barley acted in the above respects for Respondent during his tenure as general counsel. It is also significant that the alleged oral agreement was purportedly reaffirmed at divers times during and beyond such tenure.

    
    

11. The contention that Respondent's present general counsel consented to Barley's representation of Petitioner is to no avail since such consent was given prior to the filing of the second amended petition which asserted the existence of the oral agreement. Further, Petitioner's claim that Chapters 119 and 286, Florida Statutes, serve to limit or remove confidentiality to communications between a public agency and its attorney relative to the transaction of public business is not deemed meritorious.

    
    

12. In view of the foregoing, it is reluctantly concluded that the Hearing Officer has no alternative but to grant the motion for disqualification of Petitioner's counsel and his law firm.

    
    

13. In State, Dept. of Health, etc. v. Alice P., 367 So 2d 1045 at p. 1051, (Fla. 1st DCA 1979), the Court referred to a hearing officer's obligation to be "ever vigilant of unprofessional or unethical conduct." There is no indication that Mr. Barley consciously or intentionally violated ethical standards but it is necessary that they be considered in disposing of the pending motion.

    
    

14. Although it does not appear that the question of a hearing officer's authority to take such disqualifying action has been the subject of judicial decision, it is considered that Chapter 120 provides ample general authority to perform such a function. For example, in the conduct of a "formal proceeding" under Section 120.57(1), a hearing officer is frequently called upon to rule upon discovery and other preliminary motions dealing with matters commonly addressed in judicial proceedings, such as jurisdiction, standing of parties, and the like. In fact, Section 120.57(1)(b)3 makes reference to a party's right to request the disqualification of a hearing officer. Such motions are considered by the hearing officer in a manner similar to that employed in a judicial proceeding. During the course of a hearing, a hearing officer must determine qualifications of lay representatives who seek to represent a party pursuant to Section 120.62(2), F.S. In like manner, rulings must be made during the hearing as to such matters as the competency of witnesses, and qualifications of interpreters and expert witnesses. All of these functions are considered to be determinations properly within the quasi-judicial functions of a hearing officer. See State, Dept. of Administration v. Stevens, 344 So 2d 290 (Fla. 1st DCA 1977). Dept. of Environmental Reg. v. Leon County, 344 So 2d 297 (Fla. 1st DCA 1977). It is noteworthy that the Division of Administrative Hearings has been deemed a "tribunal" within the meaning and application of the 1978 Rules of Appellate Procedure with authority to tax costs. State, Department of H. and Rehab. Serv. v. Barr, 369 So 2d 595 (Fla. 1st DCA 1978). Further, it has been held that hearing officers have authority to make preliminary rulings on motions to dismiss cases properly before them, Florida Real Estate Commission v. Frost, 373 So 2d 939 (Fla. 4th DCA 1979).

    
    

15. Petitioner will have twenty days from the date of this order in which to secure replacement counsel.

DONE AND ORDERED this 12th day of March 1980 in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

COPIES FURNISHED:

Spiro Kypreos, Esquire Office of General Counsel

Department of General Services Room 457 Larson Building Tallahassee, Florida 32301

John A. Barley, Esquire Barley and Corrigan

630 Lewis State Bank Building Post Office Box

Tallahassee, Florida 32302

Herbert Sikes, Esquire State Board of Education Knott Building Tallahassee, Florida 32301

Service Vending of Tallahassee, Inc. Post Office Box 5582

Tallahassee, Florida 32301

================================================================= DISTRICT COURT ORDER

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

SERVICE VENDING OF TALLAHASSEE, INC.,

Petitioner

v. No. VV-100

DOAH CASE NO. 79-2171

DEPARTMENT OF GENERAL SERVICES and

State Board of Education,

Respondents.

/ February 4, 1981.

Rehearing Denied Feb. 25, 1981.

On Petitioner for Writ of Certiorari to the Division of Administrative Hearings ; Thomas C. Oldham, Hearing Officer.

Stephen Marc Slepin, Tallahassee, for petitioner. Spiro T. Kypreos, Tallahassee, for respondents.

PER CURIAM.

We have considered the Petition for Writ of Certiorari and the response thereto. Because the hearing officer's order did not depart from essential requirements of law, the petition is denied.

ROBERT P. SMITH, Jr., BOOTH and SHIVERS, JJ., concur

Docket for Case No: 79-002171

Orders for Case No: 79-002171