STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: JAMES R. ENGLISH, )

) CASE NO. 93-1523EC

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on July 12, 1993, in Tallahassee, Florida.

APPEARANCES

The Advocate for the Virlindia Doss, Esquire Florida Commission on Assistant Attorney General Ethics: Department of Legal Affairs

The Capitol, PL-01

Tallahassee, Florida 32399-1050

For Respondent: Bruce A. Minnick, Esquire

Mang, Rett & Collette, P.A. 660 East Jefferson Street Post Office Box 11127

Tallahassee, Florida 32302-3127 STATEMENT OF THE ISSUES

On October 20, 1992, the State of Florida Commission on Ethics issued its order finding probable cause that

...Respondent, as City Attorney for the City of Tallahassee and an employee of the City, violated Section 112.313(3) by assigning legal work to the law firm in which he was a partner and for which legal work the City paid the law firm, and Section 112.313(7)(a) by holding a one-sixth ownership interest in a law firm doing business with the City.

The issue is whether those violations occurred and, if so, what discipline or penalty is appropriate.

PRELIMINARY STATEMENT

On March 17, 1993, the Executive Director of the Commission on Ethics forwarded this case to the Division of Administrative Hearings for conduct of a public hearing and for a recommended order. After consultation with counsel for the parties, the hearing was scheduled as set forth above.

At the hearing, the Advocate presented one witness, the Respondent, and submitted the following exhibits, received in evidence without objection: Advocate's exhibits #1-4, 6-7, 12-16, 19-27.

Respondent testified in his own behalf and presented the additional testimony of Hurley Rudd, Jack McLean and Harry Morrison. Respondent's exhibits #3-5, 8-11 and 17 were received in evidence. Respondent's motion to supplement record exhibits, filed August 24, 1993, is DENIED as moot. The proposed supplemental exhibit was already received as Advocate's #21 (agenda and task force report).

The complainant, Eugene Danaher, attended the hearing and made a statement at the close of the parties' cases.

A transcript was filed and both parties submitted proposed recommended orders. The findings of fact proposed by each party are addressed in the attached appendix.

FINDINGS OF FACT

1. The charter of the City of Tallahassee was adopted in 1919, and its provisions for a city attorney have remained basically unchanged since then. Section 29 of the City of Tallahassee Code states that the city commission shall appoint a city attorney. The code also authorizes the city attorney, with the advice and consent of the city commission, to appoint one or more assistant city attorneys to serve at his pleasure and under his direction and supervision. (Advocate's exhibit #16)

   
   

2. Until recent years there was no full-time city attorney. The city commission appointed an attorney who was not an employee of the city, but rather was a member of a law firm. The city and the firm had an arrangement under which the firm was paid a monthly retainer for forty hours work at a set hourly rate. The firm billed the city for any work over forty hours each month at the approved hourly rate.

   
   

3. Bryan Henry was appointed city attorney in the early 1970s, around 1971 or 1972. He was a principal and founder of the firm, Henry and Buchanan, which later became Henry, Buchanan, Mick & English.

   
   

4. Respondent, James A. "Jim" English (English), worked as a law clerk during law school for Roy Rhodes, the prior city attorney, and then for Bryan Henry. He was hired by the Henry and Buchanan law firm as an associate after law school in 1975. Beginning early in his career, English was involved almost exclusively in legal work for the city; even then, the volume of work exceeded the capacity of any single individual. Between 1974 and 1984, from three to five lawyers in the firm did some work for the city, based on their expertise and experience and based on their assignments from Bryan Henry, the city attorney.

   
   

5. In 1977 English became a shareholder in the firm, Henry, Buchanan, Mick & English, P.A., a Florida professional corporation. From that time until he left the firm in 1992, he received distributions of his share of the firm's profits.

6. Bryan Henry became ill in 1980, and most of the duties of the city attorney were performed by English. In September 1983, Bryan Henry resigned and recommended that English be appointed to succeed him. On September 13, 1983, the city commission voted to appoint Jim English as the city attorney.

   
   

7. Discussion accompanying the appointment reflected the commission's continued interest in the manner of delivery of legal services to the city. Earlier, in 1981, the commission had discussed alternative methods and had requested research and reports on the experience of other Florida cities.

   
   

8. The appointment of Jim English in September 1983 did not immediately change the status quo; that is, the parties continued to operate on the retainer plus fee arrangement and English received no salary nor other benefits from the city. The agreement or arrangement was not evidenced by a written contract. Rather, the commission voted on the hourly rate in its annual budget deliberations.

   
   

9. In May 1984, after the city elections, the commission established its priority issues. By this time, there were three lawyers on the commission: Carol Bellamy, Kent Spriggs and Jack McLean. The delivery of legal services was designated a priority or "target" issue. A task force or committee was appointed on June 26, 1984, to study the issue and report back to the commission. The committee, chaired by Commissioner Bellamy, included Commissioner Rudd, the city manager, the director of employee relations, the director of the office of management and budget, and the city attorney (English). Its charge was to report back to the commission on its study of three options: in-house counsel, outside counsel (the existing structure), or a blend of the two (minimal in-house staff, supplemented with outside contract counsel).

   
   

10. The task force report is dated September 24, 1984. It compared Tallahassee's legal costs with those of eight other cities in Florida. Tallahassee's costs were ranked second to lowest in "per capita cost", "cost per employee", and "percent of total operating budget". The report detailed advantages and disadvantages of each of the three options it studied, and the report provided a detailed analysis of the legal department's scope of work derived from three months of the city attorney's time slips.

    
    

11. The report was placed on the city commission agenda for the October 2, 1984 meeting, but was deferred for the next meeting when the commissioners received a proposed agreement from English. The proposed agreement was adopted by a 4-1 vote on October 9, 1984.

    
    

12. The professional services agreement, effective October 15, 1984, provided for English to become a full-time employee of the City of Tallahassee with the same benefits as other appointed officials, except the city manager. With the exception of pro bono work, his professional time was to be exclusively devoted to "the legal work and other obligations of the charter office of the city attorney." (Advocate's exhibit #7) His salary was set at $61,500 per year, and $3,430 per month was established as compensation to his firm for overhead. The salary increased to $7,327.67 per month in 1991, while the overhead covering English's office and support staff at the firm remained constant.

13. The agreement clearly contemplated continued use of the Henry, Buchanan, Mick & English firm. It provided: "All other work performed by the City Attorney's law firm shall be paid for at the hourly rate established by the commission". (Advocate's exhibit #7, p. 2) It also required that the monthly billing of the law firm include the percentage of work actually performed by minority professionals in the firm in that given month. It provided that the number of assistant city attorneys would not be increased without commission approval and that their supervision and performance was the responsibility of the city attorney. The agreement described a mechanism for review by the city attorney of each new case form opened by the firm to insure that no conflict existed between the new client matter and the city. It required that the city attorney continue to file annual statements of financial interests for the law firm indicating clientele of the firm which generated over 10 percent of the firm's income.

    
    

14. Nothing in the agreement specified how much city work the firm should get; that was substantially left to English's discretion. The commission was aware of the type of work the firm had been providing and what work was typically performed by other firms; for example, utilities-related legal work and the prosecution of cases before various city regulatory boards were being contracted out to other firms.

    
    

15. Between 1986 and 1991, the Henry, Buchanan, Mick & English firm received the bulk of the city's legal business:

    
    

    Fiscal Year Henry, Buchanan, Mick & English Other Legal Counsel

    
    

    1986	$230,332.75	$ 133,697.00
    1987	301,583.47	194,034.56
    1988	476,484.66	216,212.95
    1989	510,821.82	873,470.61
    1990	684,472.55	1,000,368.48
    1991	993,384.45	1,434,548.80

    (Advocate's exhibit #4)

    
    

    The city was one of the firm's largest clients. (Respondent's exhibit #5, Statements of Financial Interests, Part B)

    
    

16. Between 1985 and 1991, English's share of profit distributions from the law firm totaled $86,157.00. He did not receive a salary from the firm.

    
    

17. After the complaint was filed in this case, English resigned from the firm and sold his stock shares back to the firm. The resignation was effective May 1, 1992.

    
    

18. Although English was familiar with the ethics code, had lectured on it, and had helped draft a city policy based on the code, neither he nor any of the three lawyers on the commission at the time apparently contemplated that his employment status created in 1984 violated the code. Debate and discussion on the provision of legal services was open and vigorous in the years and months immediately preceding the agreement in 1984. In the view of the two former commissioners who testified in this proceeding, Hurley Rudd and Jack McLean, the agreement represented a fair and reasonable solution to the variety of concerns raised by the individual commissioners. Those concerns included accountability, avoidance of conflict with other clients of the firm, the use of minority businesses, quality of services, and, of course, economy.

19. No evidence in this proceeding suggests that the city was, in fact, ill-served by the agreement over the years. The city has more recently authorized the creation of an in-house legal department and has staffed it; and English remains the city attorney and an employee of the city.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), F.S., and Rule 34-5.010, F.A.C.

    
    

21. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in 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 Service, 348 So.2d

    249 (Fla. 1st DCA 1977). In this proceeding, it is the commission, through the Advocate, that is asserting the affirmative that Respondent violated sections 112.313(3) and 112.313(7)(a), F.S. Therefore, the burden of proving the elements of Respondent's alleged violations is on the Advocate.

    
    

    The standard of proof in cases before the Ethics Commission requires proof of the charges by a preponderance of the evidence. In re Michael Langton, 14

    F.A.L.R. 4175 (1992). See also In re Leo C. Nichols, 11 F.A.L.R. 5234 (1989).

    
    

22. Section 112.313(3), F.S., provides, in pertinent part:

    
    

    (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.

    * * *

    This subsection shall not affect or be construed to prohibit contracts entered into prior to:

    1. October 1, 1975.

    2. Qualification for elective office.

    3. Appointment to public office.

    4. Beginning public employment.

    Section 112.313(7), F.S. provides, in pertinent part:

    
    

    1. CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.--

       1. 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 any 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.

          
          

23. When he was appointed city attorney in 1983, English became a "public officer" as defined in section 112.313(1): "...the term 'public officer' includes any person elected or appointed to hold office in any agency, including any person serving on an advisory body." In this regard, his circumstances are distinguished from those of the city attorney in CEO 81-61 whom, according to that opinion, was not "appointed" to the office.

    
    

24. As city attorney, English "directly or indirectly" purchased services from his own firm. He also, in his private capacity, sold the firm's services to the city. These facts establish a violation of section 112.313(3), F.S. See, Howard v. State Commission on Ethics, 421 So.2d 37 (Fla. 3rd DCA 1982). The grandfather provisions of section 112.313(3), F.S., are not applicable.

    Although the city commission periodically approved hourly rates for the firm, no contract required that any quantity of work be referred to the firm. The arrangement was open-ended, with some degree of oversight by the commission in its budget review. Whatever agreements or arrangements existed prior to 1984, it is obvious from the minutes of the commission meetings and the testimony in this proceeding that the commission in 1984 insisted on a new approach, made a complete and thorough review of available options and did not consider itself bound to any prior arrangement. The relevant "contract" for purposes of applying the grandfather clause is the October 15, 1984 contract.

    
    

25. The evidence also establishes a violation of section 112.313(7), F.S. English's firm did business with the agency of which he was an officer; he had the authority to generate that business at the same time that he received distributions of the firm's profits. Without any suggestion of ill intent, that status falls within both proscriptions of section 112.313(7)(a), F.S. The status created a situation which "tempt[ed] dishonor". Zerweck v State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982).

26. Contrary to Respondent's assertion, the escape provision of section 112.313(7)(b), F.S., does not apply:

    
    

    1. This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance.

    
    

    English was obviously required to be a lawyer, but that is not the issue. He was not required nor permitted by any law or ordinance to remain a partner in the law firm and reap its benefits.

    
    

    Penalty

    
    

27. Section 112.317, F.S., provides, in pertinent part:

    
    

    112.317 Penalties.--

    (1) Violation of any provision of this part, including, but not limited to, any failure to file any disclosures required by this part or violation of any standard of conduct imposed by this part, or violation of any provision of s. 8, Art. II of the State Constitution, in addition to any criminal penalty or other civil penalty involved, shall pursuant to applicable constitutional and statutory procedures, constitute grounds for, and may be punished by, one or more of the following:

    (a) In the case of a public officer:

    1. Impeachment.

    2. Removal from office.

    3. Suspension from office.

    4. Public censure and reprimand.

    5. Forfeiture of no more than one-third salary per month for no more than 12 months.

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

    7. Restitution of any pecuniary benefits received because of the violation committed.

       
       

       Pursuant to section 112.324(7), F.S., the Commission on Ethics, upon finding a violation of the ethics code, must report its findings and recommend appropriate action to the proper disciplinary body, in this case, the city.

       
       

28. English should have known that his dual status created violations of the ethics code. The two cases cited above, Howard and Zerweck, were decided in 1982, prior to the agreement between English and the city. Both cases appear in annotations to the Florida Statutes. English is a seasoned and highly respected local government attorney. It does not matter that other attorneys on the commission may have failed to recognize the problem; he, not they, had the responsibility to advise the city. Whether his oversight was deliberate or the result of myopic zeal to address the commission's expressed concerns is immaterial. Both Howard and Zerweck, supra, expressly acknowledge that sections 112.313(3) and (7) proscribe conduct without regard to allegations of impropriety or "dishonor".

29. The Advocate suggests a penalty of restitution in the amount of

$5,000.00 and a civil penalty of $5,000.00 per violation, for a total of

$15,000.00. This is consistent with the commission's final order and recommendation in In re J.G. Spicola, (order rendered June 11, 1992). Although it is not possible to ascertain how much of the profit distributions to English were based on work done for the city, it is obvious that some portion was so derived. The city was one of the firm's largest clients. (See finding of fact #15, above)

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Florida Commission on Ethics issue its public report and final order finding that Respondent, James R. English, violated sections 112.313(3) and (7), F.S., and recommending a penalty of $5,000.00 restitution, and a civil penalty of $10,000.00, for a total of $15,000.00.

DONE AND RECOMMENDED this 19th day of November, 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 19th day of November, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1523EC

The following constitute specific rulings on the findings of fact proposed by the parties as provided for in section 120.59(2), F.S.

The Advocate's Proposed Findings 1.-2. Adopted in paragraph 1.

3.-4. Adopted in paragraph 2. and paragraph 4.

1. Adopted in paragraph 8.

2. Adopted in substance in paragraph 2.

3. Adopted in paragraph 4.

4. Adopted in substance in paragraph 5. 9.-11. Adopted in paragraph 6.

12. Adopted in paragraph 8.

13.-15. Adopted in paragraph 9.

1. Adopted in substance in paragraph 10.

2. Adopted in substance in paragraph 11.

18.-19. Adopted in substance in paragraph 12.

1. Rejected as unnecessary.

2. Adopted in paragraph 11.

22.-23. Adopted in paragraph 12.

24. Adopted in paragraph 15.

25.-26. Rejected as cumulative and unnecessary.

1. Adopted in paragraph 16.

2. Addressed in paragraph 13. The agreement addressed work to be done by the firm, but did not mandate that the firm be used for any given amount.

3. Adopted in paragraph 14.

4. Adopted in paragraph 13.

31.-33. Addressed in paragraph 18.

34.-38. Rejected as argument or unnecessary. The provisions of the ethics code at issue here do not require intent for a violation.

Respondent's Proposed Findings of Fact

1. Adopted in paragraphs 1. and 2.

2. Adopted in paragraphs 2. and 3., in substance.

3. Adopted in paragraph 4.

4. Adopted in substance in paragraph 7.

5. Adopted in substance in paragraph 5.

6.-9. Addressed in paragraph 7., otherwise rejected as unnecessary.

10. Adopted in paragraph 6.

11.-12. Adopted in substance in paragraph 9.

13.-14. Adopted in part in paragraph 11., otherwise rejected as misleading or unnecessary.

1. Adopted in paragraph 13.

2. Adopted in paragraph 9.

3. Rejected as overbroad. If anyone did recognize a conflict, it was not addressed in the commission meeting minutes.

4. Adopted in part in paragraph 17, otherwise rejected as unnecessary.

5. Adopted in substance in paragraph 19. 20.-21. Rejected as unnecessary.

1. Adopted in material part in paragraphs 12.-13. and 18.

   
   

   COPIES FURNISHED:

   
   

   Virlindia Doss, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, PL-01

   Tallahassee, Florida 32399-1050

   
   

   Bruce A. Minnick, Esquire Mang, Rett & Collette, P.A. 660 East Jefferson Street Post Office Box 11127

   Tallahassee, Florida 32302-3127

   Bonnie Williams, Executive Director Ethics Commission

   Post Office Drawer 15709 Tallahassee, Florida 32317-5709

   
   

   Phil Claypool, General Counsel Ethics Commission

   Post Office Drawer 15709 Tallahassee, Florida 32317-5709

   
   

   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 JAMES R. ENGLISH, ) DOAH Case No. 93-1523EC

   ) Complaint No. 92-25 Respondent. ) Final Order No. COE 94-09

   )

   
   

   FINAL ORDER AND PUBLIC REPORT

   
   

   This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on November 19, 1993 by the Division of Administrative Hearings' Hearing Officer. The Hearing Officer recommends that the Commission issue its public report and final order finding that Respondent violated Sections 112.313(3) and 112.313(7)(a), Florida Statutes. She also recommends a penalty of $5,000.00 restitution and $10,000.00 civil penalty, for a total of

   $15,000.00. In a December 1, 1993 order rendered on December 9, 1993, the Commission Chairman granted Respondent's request until December 22, 1993 to file exceptions to the Recommended Order. The Respondent filed his exceptions on December 28, 1993. The Commission Advocate filed a Motion to Strike the Respondent's Exceptions as being untimely filed and the Respondent has filed his Response

   
   

   Having reviewed the Recommended Order, the Commission Advocate's Motion to Strike Exceptions, the Respondent's Response to Motion, the Respondent's Exceptions, and the record of the public hearing of this complaint, and having

   heard arguments of counsel for the Respondent and the Commission's Advocate, the Commission makes the following findings, conclusions, rulings, and recommendations:

   
   

   STANDARDS FOR REVIEW

   
   

   Under Section 120.57(1)(b)10, Florida Statutes, an agency nay reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987).

   Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v.

   Sheffield, 95 So.2d 912, 916 (Fla. 1957).

   
   

   The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the Commission is bound by that finding.

   
   

   RULING ON THE COMMISSION ADVOCATE'S MOTION TO STRIKE RESPONDENT'S EXCEPTIONS

   
   

   Commission Rule 34-5.022(2), F.A.C., permits the Respondent and the Commission Advocate 15 days after receipt of the Recommended Public Report to file exceptions. By letter addressed to the Commission's Executive Director dated December 1, 1993, Respondent requested an extension of time to file exceptions. The basis of his request was that he and his Attorney would be out of town for the Thanksgiving Holidays through November 28, 1993 thereby leaving insufficient time "to meet, plan, and formulate exceptions" prior to the time when they would be due. By Order of the Commission Chairman, the Respondent's request was granted and he was ordered to file his exceptions on or before December 22, 1993. The term "filed," when used to denote a limitation period, is a legal term generally understood to mean that the agency must receive the matter required no later than the date stated. See Environmental Resource Associates of Florida v. State. Departmental of General Services, 624 So.2d 330, 332 (Fla. 1st DCA 1993). Respondent's exceptions were filed with the Commission on December 28, 1993--six days after they were due. On December 20, 1993, Respondent's attorney wrote to the Commission asking for a one-month postponement of the final hearing. This was received on December 22, 1993 and was denied by letter dated December 22, 1993.

   
   

   Upon consideration of the pleadings and arguments of the Commission Advocate and the Respondent, we hereby deny the Commission Advocate's Motion to Strike the exceptions.

   Rulings on Respondent's Exceptions

   
   

   1. Respondent excepts to the Hearing Officer's denial of his Motion to Supplement Record Exhibits. Respondent argues that R 11 is incomplete on its face. However, we note that while Respondent was identifying this exhibit (Tr.

      p. 34), the Commission Advocate interrupted Respondent's testimony stating:

      
      

      Excuse me. If I could interrupt, an

      objection that just for clarity of the record, if I could state that the report that Mr.

      English is referring to I believe is attached to Advocate's Exhibit 21. It's a report entitled "City Attorney Organizational Structure," just so you'll all know when the transcript comes out what that is there. I hope that is helpful.

      
      

      [Tr. pp. 35-36] The Commission Advocate put Respondent on notice at that time that he was offering an incomplete exhibit. The complete exhibit, however, was incorporated in Exhibit A 21, which had already been offered and accepted into evidence (Tr. p. 7). Although he did not seek permission to supplement the record at the time that he was informed that his exhibit was incomplete, Respondent argues that the Hearing Officer erred in denying his motion to supplement the record.

      
      

      In addition, contrary to Respondent's representation that his Motion was unopposed, Respondent merely represented in his motion to the Hearing Officer that he did not expect any objection from the Advocate. He apparently did not comply with Fla. Admin. Code Rule 60Q-2.016 and confer with the Commission Advocate prior to filing his motion so that he could represent to the Hearing Officer whether the Advocate, in fact, had any objection to his motion:

      
      

      Inasmuch as the hearing already had been completed and the exhibit that Respondent wished to supplement the record with already was in the record as an exhibit, the Hearing Officer did not abuse her discretion in denying Respondent's motion. Therefore, Respondent's exception is rejected.

      
      

      Rulings on Respondent's Exceptions to Findings of Fact

      
      

   2. Respondent excepts to the Hearing Officer's use of the word "Code" in paragraph 1 (on page 2 of the Recommended Order). He asserts that the proper word is "Charter." Inasmuch as Respondent's exception speaks to a technical error in wording rather than a substantive change in the Hearing Officer's Finding of Fact No. 1, and inasmuch as the record of the hearing supports the Respondent's contention, Respondent's exception is accepted.

      
      

   3. Respondent excepts to the Hearing Officer's use of the phrase "full- time city attorney" in paragraph 2. He argues that the proper choice of words would be "in-house city attorney" to reflect the reality of the situation. Respondent's exception is rejected.

      As stated by the court in Heifetz v. Department of Business Regulation. Division of Alcoholic Beverages & Tobacco, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985):

      
      

      It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence. State Beverage Department v. Ernal. Inc., 115 So.2d

      566 (Fla. 3d DCA 1959). If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other.

      
      

      It is not our function to reweigh the evidence or to rewrite the Hearing Officer's finding as long as there is competent substantial evidence to support the findings, as there is here.

      
      

      Additionally, Respondent's proposed change would change the meaning of the paragraph. Here, the Hearing Officer was referring to the change in 1984 whereby, although he remained a partner in his law firm, Respondent became a salaried employee of the City restricted from working on any other matter but City matters excepting as permitted under his contract with the City.

      
      

   4. Respondent excepts to the Hearing Officer's inclusion of the letter "A" as Respondent's middle initial. Inasmuch as the record supports Respondent's claim that Respondent's middle initial is "R.", Respondent's exception is accepted.

      
      

   5. Respondent excepts to what he characterizes as the Hearing Officer's "abbreviated recitation of facts" leading up to Respondent's appointment as City Attorney in paragraphs 6 and 7 of the Recommended Order. Respondent argues that the record contains uncontradicted evidence despondent's main defense that it was the City (and especially Commissioner Carol Bellamy) that initiated the 1984 change in delivery of services, and that the idea of employing a private attorney full-time and also retaining the services of the attorney's law firm was proposed by Ms. Bellamy and others long before Respondent was appointed to his office.

      
      

      For the reasons stated in paragraph 2 above, Respondent's exception is rejected. It is the function of the hearing officer to resolve conflicts, to judge credibility of witnesses, to draw permissible inferences from the evidence, and to reach ultimate findings of fact based on competent substantial evidence. It is not our function to reweigh the evidence as long as there is competent substantial evidence to support the Hearing Officer's findings as there is here. Inasmuch as the Hearing Officer fulfilled her function of weighing the evidence, judging the credibility of the witnesses, and drawing permissible inferences from the evidence, we are not free to supplement her findings. As the Court stated in Manasota 88. Inc. v. Tremor, 545 So.2d 439 (Fla. 2d DCA 1989):

      
      

      Agency fact-finding independent of and supplementary to D.O.A.H. proceedings has been specifically disapproved. See e.g. Friends of

      children v. Department of Health and Rehabilitative Services, 504 So.2d 1345 (Fla.

      1st DCA 1987).

      
      

   6. Respondent excepts to what he characterizes as the Hearing Officer's failure to include "relevant" facts in paragraph 9 of her Recommended Order. Respondent argues that the record contained "conclusive evidence of the City's clear intent to adopt Ms. Bellamy's 1981 idea as an option in the search for a 'new relationship'"1 with the City Attorney. For the reasons stated in paragraphs 2 and 5 above, Respondent's exception is rejected. It is not for us to reweigh the evidence when there is competent substantial evidence of record to support the Hearing Officer's finding.

      
      

   7. Respondent excepts to the Hearing Officer's statement in Paragraph 10 of her Findings of Fact that "detailed analysis of the legal department's scope of work (was) derived from three months of city attorney's time slips." (Emphasis supplied.) Respondent argues that the evidence clearly shows that the detailed evidence included a complete review of all assistant city attorney's time slips and all billings from other law firms doing other legal work for the city, not just Mr. English's personal time slips. Respondent's exception is rejected as there is competent substantial evidence of record to support the Hearing Officer's Finding. See Advocate's Exhibit A 21 (Table II - Special Notes).

      
      

   8. Respondent excepts to the Hearing Officer's alleged failure to include what he characterizes as "relevant facts" in paragraph 11 of her Findings of Fact establishing the degree to which Commissioner Bellamy went to salvage some portion of her often repeated desires and plans to require the city attorney to be a full-time salaried employee of Tallahassee. Respondent argues that, "having chaired the task force only to find that the 'status quo' was much better, cheaper and more efficient than the alternative pure in-house plan, Bellamy returned to her original (1981) idea whereby the City Attorney would be a member of a firm and also be employed full-time." For the reasons stated in paragraphs 2 and 5 above, the Respondent's exception is rejected.

      
      

   9. Respondent excepts to the Hearing Officer's omission of any mention of the what he claims is a provision in his 1984 contract with the City whereby his salary could be increased annually by up to 10 percent under certain circumstances. Respondent argues that because he never asked for the 10 percent pay, his salary was never increased under that provision of the agreement, but that "it is important to note that he could have sought an additional 10 percent of his salary each year, with the blessings of the city."

      
      

      For the reasons set forth in paragraphs 2 and 5 above, Respondent's exception is rejected. In addition, we note that Respondent's claim is contrary to the evidence of record. Respondent's exhibit No. 3, which includes the Revised Professional Agreement that Respondent entered into with the City, at page 2, permits Respondent to receive additional compensation in an amount not to exceed 10 percent of his salary for the handling of "extra-ordinary" litigation authorized by the City Council. This provision neither provides an annual 10 percent increase in salary nor could the Respondent have requested one under this provision.

      
      

   10. Respondent excepts to that portion of the Hearing Officer's Finding of Fact wherein she finds that the [1984] agreement [between the City and the Respondent] "described a mechanism for review by the city attorney of each new case form opened by the firm to insure that no conflict existed between the new

       client matter and the city." Respondent argues that the city Attorney was required to review all such new accounts and then give the new account cards to the City Auditor for additional independent review.

       
       

       Respondent's exception is rejected for the reasons stated in paragraphs 2 and 5 above. In addition, we note that the agreement that the Hearing Officer refers to (Exhibit R 3 at p. 3 of the agreement) states:

       
       

       Each new case form opened by the firm will be reviewed by the City Attorney to ensure that no conflict exists between the handling of the new client matter and the City. [Emphasis supplied.]

       
       

       We also note that contrary to Respondent's assertion that the City Attorney was required to give the account card to the City Auditor for additional independent review, the agreement only requires that the case forms be made available to the City Auditor.

       
       

   11. Respondent excepts to the following statement in paragraph 14 of the Hearing Officer's Findings of Fact:

       
       

       Nothing in the agreement specified how much city work the firm should get; that was substantially left to English's discretion.

       
       

       Respondent argues that this statement does not reflect the facts in evidence regarding the scope and type of legal work that was expected to be done by the firm. He argues further that the "past practice of referring most legal work to the firm was expected by the city to remain unchanged." He writes:

       
       

       The city still controlled the (low) hourly rates for all work going to the firm, and English had no discretion to change the long- standing practice of using the firm for all legal work except that which historically had gone out to other specialized firms, or firms owned by minority lawyers.

       
       

       Respondent's exception is rejected for the reasons set forth in paragraphs

       2 and 5 above. The facts Respondent refers to are found by the Hearing Officer in paragraph 13 of her Findings of Fact. Respondent's reference the City's control over the "(low) hourly rates" for all work going to the firm also is misleading in light of the Respondent's testimony about the firm's acceptance of the lowest rate that the firm gave anyone for services because of the volume of work that it was receiving from the City. See Tr. p. 108.

       
       

   12. Respondent excepts to what he characterizes as the Hearing Officer's failure to find that the Task Force report and long-standing past practice of the City required English to continue to give the firm "the bulk of the City's legal business" because the firm's hourly rates were controlled and kept lower by the City. He also excepts to the Hearing Officer's "failure to notice that the percentage of work done by the City decreased from 63.3 percent in fiscal year 1986 to 40.9 percent in fiscal year 1991." He argues that this mathematical fact is conclusive proof that Mr. English did not ever take advantage of his alleged "discretion" by increasing the firm's City business.

       Respondent argues that the facts clearly show that he decreased the firm's relative position in favor of other firms, even while the City policy was to utilize his firm the most.

       
       

       Respondent's exception is rejected for the reasons stated in paragraphs 2 and 5 above. Respondent's exception also has no merit because the Hearing Officer specifically found at paragraph 13 of her Findings of Fact:

       
       

       The agreement clearly contemplated continued use of the Henry, Buchanan, Mick & English firm. It provided: "All other work performed by the City attorney's law firm shall be paid for at the hourly rate established by the commission."

       
       

       It was the 1984 agreement that was significant with respect to the continued use of the Respondent's law firm, not the "long-standing past practice of the City." In addition, the Task Force Report did not require Respondent to do anything and, contrary to Respondent's assertion, the firm's hourly rates were not "controlled" by the City but agreed to between the City and the firm in consideration of the volume of work that the firm anticipated receiving from the City. Finally, the facts do not, as Respondent asserts, conclusively show that the percentage of work done by the City decreased from 1986 to 1991 or that he decreased the firm's relative position in favor of other firms.

       
       

       The figures indicate that in 1986, the Respondent's law firm's share of the City's legal business was 63 percent. In 1987, the firm had a 30 percent increase in the amount paid to it as compared to a 45 percent increase in the amount paid to other law firms (the total percentage of monies paid for legal work to the firm was 60 percent). In 1988 the percentage of monies paid to the firm for the City's legal work increased to 69 percent of the total, while the increase over the year before paid to the firm was 57 percent and to the other law firms was 11 percent. In 1989 the amount of monies paid to the firm over 1988 increased 7 percent and the amount paid to other firms over 1988 figures increased 303 percent (the total percentage of monies paid to the firm for the City's legal work was 37 percent). In 1990 the firm's increase in monies paid to it by the city over 1989 amounts was 33 percent, while the increase to other law firms was 15 percent (the total percentage of monies for the City's legal paid to the firm was 40 percent). Finally, in 1991 the amount of monies paid to the law firm for work done on City business increased 45 percent over the amounts paid to the firm the previous year, while the amounts paid to other firms increased only 43 percent (the total percentage of monies paid to the firm during 1991 for handling the City's legal business was 40 percent). Some of the increase paid to other law firms can be attributable to extra- ordinary legal matters, i.e., major territorial dispute with Talquin Electric Corporation and significant non-electric issues "starting particularly in `89." (Tr. p. 112).

       
       

       Ruling on Respondent's Exceptions to Conclusions of Law

       
       

   13. Respondent excepts to the Hearing Officer's conclusion at paragraph 24 of the Recommended Order that Respondent "directly or indirectly purchased services from his own firm. . . (and) he also, in his private capacity, sold the firm's services to the City." Respondent argues that the Hearing Officer's conclusion is unsupported by the record. He argues that the Respondent did not "purchase services" from his firm; the City purchased all legal services from all law firms. He argues further that the City's longstanding practice, even

       before he was appointed to be City Attorney, required the purchase of most legal services from the Henry, Buchanan firm, "where the hourly rates were controlled (by ordinance) in order to save money on legal services." Finally, Respondent argues that contrary to the Hearing Officer's conclusion that he "sold the firm's services to the City," the evidence shows that the City was "buying" legal services from the firm long before he was hired by the firm and continues to buy services from the firm to this day.

       
       

       We disagree with the Respondent's contentions. The record contains substantial competent evidence upon which the Hearing Officer properly concluded that Respondent either directly or indirectly purchased services from his own firm. See Howard v. State Commission on Ethics, 421 So.2d 37 (Fla. 3d DCA 1982). In light of the Respondent's discretion both to assign work to his law firm and to hire outside counsel, and in light of the fact that the amount of work he assigned to his firm increased substantially between 1986 and 1991, we conclude that the Respondent, as City Attorney, purchased legal services either directly or indirectly from his law firm, as well as sold legal services to the City as a partner in the firm in violation of Section 112.313(3), Florida Statutes.

       
       

       Respondent's claim that the City had a longstanding practice of acquiring legal services from the Henry, Buchanan firm begs the question. Once Respondent became a public officer by his appointment to the City Charter position of City Attorney in 1983 and an employee of the City in 1984, he was prohibited by Section 112.313(3), Florida Statutes, from purchasing services for the City from his law firm and from selling his law firm's services to the City as a partner in the firm.

       
       

   14. Respondent excepts to the Hearing Officer's conclusion in paragraph 24 of the Recommended Order that the "grandfather" provision of Section 112.313(3), Florida Statutes, does not apply in this case. Respondent argues that the firm had a contract for legal services with the City since 1971--before the Code of Ethics was enacted. He argues that the contract between the firm and the City has not changed--that it essentially has remained the same. He argues that the only change was ministerial, that is, a different person at the firm was designated as the "City Attorney." He argues that his situation is similar to those discussed in CEO's 81-49 and 81-50. Respondent also argues that the "grandfather clause" in Section 112.313(3), Florida Statutes, exempts his contract with his firm from the statute's prohibition because it was entered into before 1984--when he began his public employment.

       
       

       Respondent's exception is rejected. His argument misapprehends the language and the purpose of the Section 112.313(3) exception to the prohibition of doing business with one's own agency. The exception is as follows:

       
       

       This subsection shall not affect or be construed to prohibit contracts entered into prior to:

       1. October 1, 1975.

       2. Qualification for elective office.

       3. Appointment to public office.

       4. Beginning public employment.

          
          

          While there is no corresponding language in Section 112.313(7)(a), Florida Statutes, we also have applied this "grandfather clause" to that provision relying on Section 112.316, Florida Statutes. See CEO 82-10.

          The "grandfather clause" applies to situations in which a contract has been entered into between a business entity and a government agency prior to an individual, who is employed by or owns an interest in the business, going to work for or becoming a public officer in the agency. We found in CEO 76-91 that by enacting the "grandfather clause," the Legislature intended to exempt from the provisions of Section 112.313(3) those contracts which were entered into at a time when the subject public official or employee was not in a position to take advantage of his public position. We also found that this assumed purpose is not served by including in the exemption either contracts which do not state specified terms and, therefore, must be negotiated at various times after the making of the contract, or contracts which do not have specified terms and, therefore, must be renegotiated periodically. Thus, we repeatedly have found that, although there may be no conflict where an individual initially becomes an officer or employee of an agency which already had a contract with the public officer's or employee's business, if the contract is renegotiated or renewed, a violation of the Code is created. See CEO's 86-71, 88-29, 90-18, and 90-70.

          
          

          Here, Respondent's firm performed services for the City prior to his being appointed to the office of City Attorney in 1983 and being hired as a City employee in 1984; however, its "agreement" with the City to perform the City's legal work is not the kind of contract which would have triggered the grandfather clause because there was no limit placed on the amount of work which could be assigned to the firm by the City Attorney and the hourly attorney rates were periodically renegotiated and renewed with the City. In addition, the Hearing Officer also properly concluded that in 1984, the City insisted on a new approach to its receipt of legal services and did not consider itself bound to any prior arrangement. Thus, contrary to Respondent's claim that the 1984 contract only effected a "ministerial" change in the firm's agreement with the City, we conclude, as did the Hearing Officer, that when the City began paying Respondent directly for his services, rather than the law firm, a new contract with the firm took effect as to which the "grandfather clause" did not apply.

          
          

          Respondent's reliance on CEO's 81-49 and 81-50 is misplaced. While we recognized in both opinions that Section 112.313(3) contains a "grandfather clause" which would exempt contracts entered into prior to October 1, 1975, we found that it did not apply in either case. In CEO 81-49, we found that the School Board had not indicated any intention also to contract with the School Board Attorney's law firm when it entered into its oral contract with the attorney, which was modified twice thereafter, and in CEO 81-50 we found that it did not apply because the contract between the School Board and the firm was entered into annually.

          
          

          Finally, we reject Respondent's suggestion that the "grandfather clause" also should be applied to exempt contracts, such as his contract with the firm, entered into prior to his beginning public employment. The "grandfather clause" applies to contracts that otherwise would be prohibited by Section 112.313(3), Florida Statutes, and not to contracts between a public officer or employee entered into in his private capacity with his business entity.

          
          

   15. Respondent excepts to the Hearing Officer's conclusion in paragraph 25 of the Recommended Order wherein she concludes that Respondent has violated Section 112.313(7)(a), Florida Statutes. Respondent argues that "as long as the government evinces a clear intent either to allow or require a public official or employee to do what he is doing as part of his duties, the provisions of Section 112.313(7)(a) cannot prohibit his conduct." Respondent's exception is rejected.

       The first part of Section 112.313(7)(a), Florida Statutes, prohibits a public officer or employee from having any employment or contractual relationship with a business entity which is doing business with or is subject to the regulation of his agency. The record contains substantial competent evidence upon which the Hearing Officer properly concluded that Respondent had a contractual relationship with his law firm which was doing business with the City. Therefore, we conclude that a violation of the first part of Section 112.313(7)(a) existed.

       
       

       The second part of Section 112.3l3(7)(a) prohibits a public officer or employee from having an employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. This provision is the codification of the common law notion that

       
       

       [T]he same person cannot act for himself and at the same time with respect to the same matter as the agent of another whose interests are conflicting. The two positions impose different obligations, and their union would at once raise a conflict between interest and duty and, constituted as humanity is, in the majority of cases duty would be overborne in the struggle.

       
       

       Zerwick v. State Commission on Ethics, 409 So.2d 57, 61 (Fla. 4th DCA 1982), quoting Justice Terrell in City of Coral Gables v. Coral Gables, Inc., 119 Fla. 30, 160 So. 476 (1935).

       
       

       There is competent substantial evidence of record to support the Hearing Officer's conclusion that the Respondent's status as both a public officer and employee, as well as a partner in a law firm doing business with the City, created a situation which "tempted dishonor." Respondent's duty as a public officer or employee was to the City; however, the more work that he assigned to his law firm, the greater the economic benefit to the firm was, and the greater his potential partnership distributions also were. This is the same inherent and irreconcilable conflict which we have previously recognized in Howard v.

       Commission on Ethics, 421 So.2d 37 (Fla. 3d DCA 1982), and in in re J.C. Sicola, 4 F.A.L.R. 4261 (Comm. on Ethics 1992).

       
       

   16. Respondent excepts to the Hearing Officer's conclusion at paragraph 26 of the Recommended Order wherein she concludes that the escape provision of Section 112.313(7)(b), Florida Statutes, is not applicable to Respondent's situation. We conclude that the Hearing Officer's conclusion is correct. Therefore, the Respondent's exception is rejected.

Respondent was required to be a lawyer in order to be City Attorney. Section 112.313(7)(a), Florida Statutes, as applied in this case does not prohibit Respondent from practicing in his chosen profession as an attorney. It does, however, prohibit him as a public officer and employee from serving as a partner in a law firm and reaping the benefits of that partnership at the same time that the firm is doing business with the City. We also agree with the Hearing Officer's conclusion that no law or ordinance required or permitted Respondent to remain a partner in the law firm and to continue to receive a distribution of its profits at the same time that he was a public officer and employee.

Findings of Fact

Upon review of the record before us, we conclude that the findings of the Hearing Officer are based upon competent substantial evidence and that the

D.O.A.H proceedings complied with the essential requirements of law. Therefore, the Findings of Fact set forth in the Recommended Order, except as modified herein, are approved, adopted, and incorporated herein by reference.

Conclusions of Law

The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.

Accordingly, the Commission on Ethics finds that the Respondent violated Sections 112.313(3) and 112.313(7)(a), Florida Statutes.

Recommended Penalty

The Hearing Officer recommended that Respondent be required to pay a penalty of $5,000.00 restitution and a civil penalty of $10,000.00 ($5,000.00 per violation), for a total of $15,000.00. We find her recommendation to be appropriate. Having found that the Respondent, James R. English, as City Attorney of the City of Tallahassee, violated Sections 112.313(3) and 112.313(7)(a), Florida Statutes, it is the recommendation of the Commission on Ethics that a penalty of restitution of $5,000.00 and a civil penalty of

$10,000.00 be imposed upon the Respondent, for a total of $15,000.00.

ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, January 27, 1994.

February 1, 1994 Date Rendered

Joel K. Gustafson Chairman

THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE

9.110 FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, 2822 REMINGTON GREEN CIRCLE, SUITE 101, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; AND BY FILING A COPY OF THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.

cc: Mr. James R. English, Respondent

Mr. Bruce A. Minnick, Attorney for Respondent Ms. Virlindia Doss, Commission Advocate

Mr. Eugene Danaher, Complainant Honorable Mary Clark, Hearing Officer Division of Administrative Hearings

Docket for Case No: 93-001523EC

Orders for Case No: 93-001523EC