The Issue The issue is the amount of attorney's fees and costs to which Petitioner is entitled as the prevailing party in the underlying matter, DOAH Case No. 19-4155.
Findings Of Fact Through its submission of evidence and presentation of witnesses, Petitioner has demonstrated that the attorney's fees sought are reasonable based upon the reasonable rate charged and the reasonable hours expended in this matter. During the December 19, 2019, hearing, Respondent offered little evidence and no witnesses to adequately dispute Petitioner's position. The hours expended in this matter are reasonable given the time and labor required, the novelty, complexity, and difficulty of the questions involved, the skills required to perform the legal service properly, the fact that working on this matter precluded other employment, and the accelerated time limitations imposed by section 1002.33(8)(c). For example, although the documents reviewed and relied upon by Petitioner were voluminous, and the motion practice was unrelenting throughout the abbreviated discovery period, the allotted time to conduct discovery, prepare for, and litigate this matter was minimal. The governing statute itself, section 1002.33(8)(c), requires that a final order be issued within 60 days of the request for hearing. In order to adequately litigate this matter, Petitioner's legal team had to dedicate almost entirely all of their time to this matter for several weeks at the cost of time that would otherwise have been dedicated to other cases and/or employment opportunities. The impact of this preclusion is especially significant given the fact that Johnson Jackson PLLC Attorney Erin G. Jackson's hourly rate for Petitioner ($165.00) is significantly lower than the hourly rate charged to the firm's private sector clients. This preclusion additionally resulted in Ms. Jackson relying upon the assistance of multiple Johnson Jackson PLLC attorneys, clerks, and paralegals, in addition to Attorney Terry J. Harmon of Sniffen & Spellman, P.A. Like Ms. Jackson, Mr. Harmon charged Petitioner a rate that is significantly lower than the rate he generally charges for private sector clients. The unique circumstances of this case rendered this assistance both reasonable and necessary to Petitioner's success in this matter. Further complicating matters, the question at issue, i.e., whether Petitioner proved violations of law and other good cause to immediately terminate a charter school agreement pursuant to section 1002.33(8)(c), is a novel one. In fact, section 1002.33(8)(c) was recently revised in 2018 in two notable and impactful ways: (1) section 1002.33(8)(d) became 1002.33(8)(c); and (2) the Florida legislature removed the option for the sponsor to hear an appeal of immediate termination, instead now requiring that all such appeals be held before an ALJ. Compare § 1002.33(8)(d), Fla. Stat. (2017), with § 1002.33(8)(c), Fla. Stat. (2018). Consequently, precedent with similar factual circumstances raising related issues pursuant to this statute is nearly nonexistent. The lack of precedent on this issue is further heightened by the fact that the conditions necessary to warrant immediate termination, i.e., an immediate and serious danger to the health, safety, or welfare of charter school students, are more severe and, therefore, much less common than terminations pursuant to other portions of section 1002.33. The novelty, complexity, and difficulty of this issue necessarily required Ms. Jackson to expend significant time and resources on researching and strategizing in preparation for the hearing. Respondent's evasive and dismissive behavior further contributed to the foregoing challenges and required Petitioner's legal team to dedicate additional hours and attorneys to this matter that would not have otherwise been necessary if Respondent simply complied with the rules of discovery and the undersigned's orders regarding the same. Consequently, Petitioner's legal team spent more than 73 hours drafting motions and performing related duties addressing Respondent's persistent refusal to respond to discovery. As a result of Respondent's failure to comply with discovery requirements and direct orders from the undersigned, Petitioner had no choice but to expend this additional time. The legitimacy and necessity of these efforts is further evidenced by the fact that the undersigned granted each of Petitioner's motions to compel. Further, Johnson Jackson PLLC maintained detailed records of all services rendered as evidence of the extensive time and effort dedicated to this matter. These records demonstrate that Johnson Jackson PLLC attorneys and staff dedicated approximately 1,178.8 hours between July 30, 2019 (when Ms. Jackson began drafting written discovery to be issued to Respondent), and January 15, 2020, to this matter. Sniffen & Spellman, P.A., also maintained detailed records of all services rendered. These records show that the attorneys and staff of Sniffen & Spellman, P.A., dedicated approximately 71.9 hours to this matter between August 2019 and January 15, 2020. During the December 19, 2019, hearing, Petitioner's expert, Attorney Robert W. Boos of Adams and Reese, testified to the reasonableness of the hours expended by Johnson Jackson PLLC in this matter. Mr. Boos has been practicing law for approximately 40 years and has served as counsel for the Hillsborough County School Board. Based on Mr. Boos' years of experience as an attorney, in addition to a review of the hours expended by the attorneys and staff of Johnson Jackson PLLC and Sniffen & Spellman, P.A., Mr. Boos testified that the total amount of hours expended was reasonable given the underlying circumstances of this matter. He also found the discounted hourly rate to be "eminently reasonable." In an effort to rebut the reasonableness of the hours expended by Petitioner's legal team, Respondent attempted to dispute the nature of its behavior in the underlying proceedings during the December 19, 2019, hearing. Specifically, although Respondent contended that it was not there "to relitigate what already happened at the previous hearing," Respondent then went on to assert that, "LMA's entire inventory, every single piece of paper, every single record was seized by Manatee County School Board. They had access to everything." However, as already thoroughly addressed by the undersigned in his 95-page Final Order, Petitioner, in fact, did not have access to everything. In fact, Petitioner still does not have access to "everything." As previously explained by the undersigned: Another factor that has not gone unnoticed by the undersigned in the course of these expedited proceedings is that LMA's pattern of refusing to respond to requests for information made by the School District during discovery has continued into these proceedings. The undersigned can only imagine Petitioner's frustration with the constant refusal of LMA to provide the documents requested during discovery, with the common refrain of "you already have the documents, because you (the School District) seized all of LMA's records … leaving us (the former staff) with nothing to provide you." However, this cry by LMA fails to ring true … . No evidence was presented through testimony, and certainly not through documentation, that LMA provided the complete records of their activities in this first year of the charter's school operations. As acknowledged by Respondent, the parties have already litigated this issue. The undersigned previously issued his Final Order as to the issue of these documents. The undersigned also stated his intent to avoid relitigating the issue during the December 19, 2019, hearing. Respondent's argument is without merit, blatantly disregards previous rulings in the underlying case, and, therefore, should have no bearing on the present issues. Notably, Respondent did not dispute the novelty and complexity of the issues involved or expedited nature of this matter. To the contrary, Respondent's qualified representative, Mr. Norwood, described this matter as "very quick, very expedited," explaining further that, "[t]here was a lot of things that happened not, you know, typical of any case … . This is a fairly new area of law, period." Such factors are relevant to determining whether the number of hours expended were reasonable. Although Respondent did not dispute the expedited nature of this matter, it nonetheless attempted to argue that the School Board had a "choice," with respect to terminating LMA's charter immediately pursuant to section 1002.33(8)(c), which requires expedited proceedings, versus section 1002.33(8)(b), which allows for a 90-day timeline. Based on this contention, Respondent suggested that it was Petitioner's own fault that these proceedings were expedited, and, therefore, Petitioner should pay for it. But this argument fails to account for the fact that the undersigned has already determined that the rationale underlying Petitioner's decision to terminate Respondent's charter was warranted due to the dangers that Respondent posed to its students' health, safety, and welfare. With student health, safety, and welfare at risk, Petitioner did not have a "choice." Rather, the act of immediately terminating LMA's charter was "the only remaining" measure available to Petitioner at that point in time: The testimony presented by both parties to this proceeding leads the undersigned to the conclusion that no tools were left for the School District in dealing with a charter school that failed to address their repeated efforts at gathering information. As evidenced by the foregoing, Petitioner has already litigated and provided sufficient evidence of the numerous notices and warnings Petitioner issued to Respondent and Respondent's lack of cooperation preceding the termination of its charter. Contrary to Respondent's allegations, Respondent's own choices caused this expediency. Accordingly, Respondent should bear the cost, not Petitioner. Given the novelty, complexity, and difficulty of resolving this issue coupled with the extraordinary circumstances of this matter, including but not limited to, the time spent by Petitioner's legal team attempting to overcome Respondent's prejudicial hurdles, the hours expended were clearly reasonable. The rates charged by Petitioner were equally reasonable. In consideration of the market value and the factors set forth in Rule Regulating Florida Bar 4-1.5, Johnson Jackson PLLC charged Petitioner $165.00 per hour for attorneys; $100.00 per hour for first-year attorneys; and $90.00 per hour for paralegals and law clerks. Johnson Jackson PLLC's hourly rate is extremely reasonable given the experience and expertise of its attorneys and staff, as evidenced by their CVs and affidavits. Sniffen & Spellman, P.A., similarly charged Petitioner $165.00 per hour for attorneys; $75.00 per hour for paralegals; and $50.00 per hour for law clerks. As evidenced by the fact that both Johnson Jackson PPLC attorneys and Sniffen & Spellman, P.A., attorneys billed the same rate, Sniffen & Spellman, P.A.'s, hourly rate is consistent with the market rate and reasonable given the experience and expertise of its attorneys and staff, once again as evidenced by Mr. Harmon's CV and affidavits. The foregoing rates are also consistent with, if not noticeably lower than, the rates charged by other attorneys, paralegals, and/or law clerks, to school boards in other nearby counties in Florida. For example, attorneys for Indian River County charge $250.00 to $180.00 per hour and attorneys for Hernando County charge $285.00 to $215.00 per hour. Importantly, despite the expedited nature of this matter, these rates do not exceed the fee agreements between Petitioner's legal team and Petitioner, which both preceded the circumstances that gave rise to this matter. Both Johnson Jackson PLLC and Sniffen & Spellman, P.A., remained committed to the hourly rates agreed-to pursuant to these agreements regardless of the complexity, novelty, and difficulty of the issues. The reasonableness of these rates is further evidenced by the nature and length of Johnson Jackson PLLC and Sniffen & Spellman, P.A.'s, professional relationship with Petitioner. For example, Ms. Jackson has had a professional relationship with Petitioner since 2009. The length of Ms. Jackson and Mr. Harmon's relationship with Petitioner also serves as evidence of Ms. Jackson and Mr. Harmon's extensive experience, skills, expertise, and abilities in this area of law. Ms. Jackson has been admitted to The Florida Bar since 2000, and Mr. Harmon has been admitted to The Florida Bar since 2006. Ms. Jackson is board certified by The Florida Bar in labor and employment law, and Mr. Harmon is board certified by The Florida Bar in education law. During the December 19, 2019, hearing, Petitioner's expert, Mr. Boos, testified to the reasonableness of the fees charged by Ms. Jackson in this matter. As mentioned previously, Mr. Boos has been practicing law for approximately 40 years and has served as counsel for the Hillsborough County School Board. Mr. Boos testified that he generally charges the School Board of Hillsborough County $310.00 per hour. By comparison, Petitioner's legal team charged Petitioner no more than $165.00 per hour. Based on Mr. Boos' years of experience as an attorney, in addition to his review of the lawyer invoices, Mr. Boos testified that Petitioner's legal team's hourly rate was "eminently reasonable." Respondent did not dispute or otherwise offer any evidence disputing the reasonableness of the hourly rates charged during the December 19, 2019, hearing. Based upon the foregoing findings, Petitioner's legal team's hourly rates are clearly reasonable in light of the market value, the agreements between the parties, and the experience and skill offered by the attorneys and staff at Johnson Jackson PLLC and Sniffen & Spellman, P.A. Accordingly, the undersigned accepts these rates in calculating the total amount of attorney's fees owed by Respondent in this matter. Based upon the reasonableness of the fees charged and hours expended, the Lodestar figure (i.e., the fees charged multiplied by the hours expended) is $175,658.00 for work performed prior to November 30, 2019, and is $17,992.50 for work performed through January 15, 2020; together, totaling $193,650.50. These totals are broken down in detail below: For work performed prior to November 30, 2019: Erin Jackson (Shareholder) - $165.00 x 346.5 hours = $57,172.50 Kevin Johnson (Shareholder) - $165.00 x 9.1 hours = $1,501.50 Christopher Bentley (Partner) - $165.00 x 4.9 hours = $808.50 Ashley Gallagher (n/k/a Tinsley) (Associate Attorney) - $165.00 x 434.1 hours = $71,626.50 Beatriz Miranda (Associate Attorney) - $165.00 x 118.2 hours = $19,503.00 Colby Ellis (Associate Attorney) - $100.00 x 2.5 hours = $250.00 Colby Ellis (Law Clerk) - $90.00 x 8.3 hours = $747.00 Julia Shinn (Paralegal) - $90.00 x 109.6 hours = $9,864.00 Tiffany Albertson (Paralegal) - $90.00 x 35.5 hours = $3,195.00 Terry J. Harmon (Shareholder)- $165.00 x 66 hours = $10,890.00 Sara Finnegan (Law Clerk) - $50.00 x 2 hours = $100.00 TOTAL PRE-NOVEMBER 30, 2019: $175,658.00 For work performed since the November 30, 2019, invoice: Erin Jackson (Shareholder) - $165.00 x 31.8 hours = $5,247.00 Ashley Gallagher (Associate Attorney) - $165.00 x 61.6 hours = $10,164.00 Bridget McNamee (Of Counsel) - $165.00 x 2.8 hours = $462.00 Julia Shinn (Paralegal) - $90.00 x 15.8 hours = $1,422.00 Tiffany Albertson (Paralegal) - $90.00 x 0.6 hours = $54.00 Terry J. Harmon (Shareholder) - $165.00 x 3.9 hours = $643.50 TOTAL POST-NOVEMBER 30, 2019: $17,992.50 TOTAL FOR PRE- AND POST-NOVEMBER 30, 2019: $193,650.50 Because the total fee amount of $193,650.50 is based upon reasonable hours expended and a reasonable hourly rate, this amount, at a minimum, should be awarded. The costs sought by Petitioner in this matter are also reasonable. As previously mentioned, Ms. Jackson and Petitioner have a professional relationship that began approximately ten years ago. This relationship is governed by a fee agreement. Petitioner's fee agreement with Johnson Jackson PLLC provides that its invoices itemize all costs, and such costs may include travel expenses, courier services, service of process fees, photocopy charges by third parties, filing fees, recording fees, lien and judgment searches, expert witnesses, court reporter services, corporate record books, registration fees charged by governmental authorities, and any other costs incurred in the course of representation. In accordance with this agreement, Johnson Jackson PLLC maintains documents itemizing all costs incurred. Accordingly, Petitioner has proper notice of the costs that may be included in any invoices issued, and each cost can be identified and allocated for purposes of demonstrating the reasonable need for these expenses. During the December 19, 2019, hearing, Mr. Boos testified that he reviewed the expenses and costs charged and found those expenses to be reasonable and customary for this type of matter. For purposes of the December 19, 2019, hearing, Petitioner paid Mr. Boos $7,500.00 for his services and $598.45 for court reporter services, totaling $8,098.45 in additional taxable costs accrued since the December 19, 2019, hearing. These costs were necessary expenditures for purposes of pursuing attorney's fees and costs in this matter. In consideration of Mr. Boos' testimony in addition to the applicable factors and guidelines, the following expenditures by Johnson Jackson PLLC should be taxed: Court Reporters/Transcripts: $25,607.9017 Service of Subpoenas & related services: $4,141.74 Cost of expert testimony by Bob Boos, Esq.: $7,500 The foregoing expenditures total $37,249.64 in taxable costs. Given the reasonableness and necessity of these expenditures, Petitioner should be awarded these costs in full. In addition to the costs outlined above, Respondent must also pay for the services rendered by CRI and Sylint. Petitioner hired CRI to conduct a forensic investigation of LMA, which included, but was not limited to, conducting an analysis of the funding received by LMA and the categorical use of those funds by LMA; confirming LMA's payroll process and determining the status of employee payroll to determine employee payroll liabilities; determining LMA employee withholdings for payroll taxes meant to be paid to the Internal Revenue Service, and LMA employee withholdings for the pension meant to be paid to the Florida Retirement System; and determine LMA's liabilities based upon the unpaid invoices and breakdown of all liabilities between the 2018/2019 and 2019/2020 school year. Based on a thorough analysis of this data, CRI prepared a report, accompanied by hundreds of pages of exhibits, upon which Petitioner's legal team heavily relied on during the formal hearing. Among other things, this report identified the voluminous debts accrued by Respondent; the source of some of those debts; and the funds that still remained unaccounted for. Pursuant to this investigation, CRI was able to confirm Respondent's debt totaled more than one million dollars. CRI Manager Mark S. Smith, Jr., drafted the report and testified about his findings and the basis for his conclusions during the hearing. During the December 19, 2019, hearing, Mr. Smith confirmed that he testified during the August 2019 hearing and verified the authenticity of his CV, CRI's invoices, and the scope of CRI's services pursuant to CRI's engagement letter with Petitioner. CRI's forensic investigation and report served as undisputable evidence of Respondent's egregious financial mismanagement and how this financial mismanagement posed an immediate danger to student health, safety, and welfare of LMA's students. The pivotal role that CRI's services played in the underlying case is undisputed. Services rendered by CRI total $42,091.00 and are broken down as follows: August 15, 2019 Invoice: $18,258.00 August 27, 2019 Invoice: $18,871.00 September 10, 2019 Invoice: $4,962.00 For similar reasons, Respondent should also pay for Sylint's services. Petitioner hired Sylint to conduct a forensic audit and investigation of Respondent's laptops, cloud accounts (including but not limited to LMA's "G-suite"), emails, and other electronic software and devices, and provide forensic and evidentiary guidance relative to this litigation. In the performance of these services, Sylint analyzed and authenticated evidence demonstrating the danger that Respondent's ongoing operations posed to student health, safety, and welfare, including but not limited to, surveillance videos showing CEO Eddie Hundley having direct contact with students while on campus, even though this conduct expressly violated statutory law and directives from the Commissioner of Education. The CEO and President of Sylint, John E. Jorgensen, testified and authenticated the date and time of these surveillance videos during the formal hearing on August 27, 2019. Sylint also discovered that agents of Respondent, including, but not limited to, Chief Financial Officer Cornelle Maxfield, deleted hundreds of files during the pendency of this action after Petitioner had served Respondent with written discovery requests. Sylint's employee, Weston Watson, testified regarding the deletion of these files during the formal hearing on August 26, 2019. To demonstrate the prejudicial effect of Respondent's conduct, Sylint also created several demonstratives presented at the hearing, including, but not limited to, a timeline showing when agents of LMA deleted documentation seemingly responsive to Petitioner's discovery requests. In addition to deleting files that should have been preserved, Respondent failed to comply with numerous requests by Sylint, Petitioner, and the undersigned to hand over tablets, phones, and/or emails in a timely fashion. For example, Mr. Hundley never gave Petitioner or Sylint his phone despite numerous requests that he do so and did not provide a USB containing his emails until approximately 3:00 p.m. on the second day of the four-day hearing. Services rendered by Sylint from August 2, 2019, to August 30, 2019, which included, but were not limited to: evidence collection and intake; data analysis; device imaging; hearing preparation; and testimony at hearing, cost approximately $24,996.68. During the December 19, 2019, hearing, and pursuant to a Motion in Limine, Respondent objected to the introduction of evidence regarding CRI and Sylint's services because the respective investigations "would have happened regardless of whether or not LMA had appealed the decision to terminate the school." In support of this contention, Respondent cited the July 23, 2019, School Board meeting minutes. However, contrary to Respondent's contentions, the July 23 School Board meeting minutes demonstrate exactly why CRI and Sylint's invoices are relevant and should be reimbursed—because the services performed by CRI and Sylint would not have been necessary but for LMA's mismanagement and poor decision- making—not any action taken by the School Board. As pointedly explained by the undersigned: I don't think they bring in a firm to perform an audit between school years … if they didn't think there was a problem going on … But this was in no way, shape, or form a routine audit being performed by CRI. It was a forensic audit looking for money that was believed to have gone missing, and ultimately based on my findings proven to have gone missing. The undersigned has already determined that the conditions resulting in the termination of LMA's charter posed an immediate danger to student health, safety, and welfare; and Respondent's conduct caused such conditions to arise. The evidence discovered and/or analyzed by Sylint and CRI was vital to Petitioner's case. In fact, the undersigned expressly relied on evidence discovered and/or analyzed by CRI and Sylint in finding that both Respondent's financial mismanagement and Mr. Hundley's conduct posed an immediate danger to the health, safety, and welfare of students. As explained by the undersigned in his Final Order: When forensic accountants and long-time public officials cannot find all of the necessary records to continue the operation of the school, just two days after being taken over by the School District, to answer the questions about payroll taxes, FRS contributions, Best and Brightest awards, food service menus and purchases, and utility payments, someone is hiding the ball. … Even with limited records available, however, the School District has made a strong case for immediately terminating the charter. Although Respondent disputes whether Petitioner would have employed CRI and Sylint's services regardless of Respondent's appeal, Respondent does not dispute the vital role that CRI and Sylint's services played in this matter. Respondent failed to produce documentation requested during discovery despite assurances that it would do so and, months later, still has not produced requested documentation. Respondent has never, during the pendency of these proceedings, in good faith responded to reasonable discovery requests. CRI and Sylint, to the extent possible, were able to at least partially to fill this gap of missing information and even demonstrate how Respondent was actively engaging in conduct to ensure Petitioner did not have access to this information. In light of Respondent's complete failure to cooperate with Petitioner, Petitioner had no choice but to rely upon CRI and Sylint's assistance. Absent this assistance, Respondent's prejudicial conduct would have significantly, if not completely, debilitated Petitioner's ability to demonstrate the true extent of the immediate dangers that Respondent posed to student health, safety, and welfare. It is also important to note that Petitioner has already reduced the requested costs for CRI and Sylint's services in an effort to be reasonable. As noted by the undersigned, Petitioner reduced the CRI invoices from $54,000.00 to $42,091.00, only submitting invoices beginning in August 2019. Sylint's invoices also begin in August 2019. Thus, prior to submission of Respondent's Motion in Limine, Petitioner already excluded, although it did not have to, any costs pertaining to services that could have arguably been perceived as "outside the scope of the Order on Termination." In consideration of the foregoing, Respondent should pay for CRI and Sylint's services as taxable costs and/or as sanctions for Respondent's willful lack of cooperation throughout these proceedings. Respondent's conduct remains undisputed. The prejudicial effect of Respondent's conduct remains undisputed. Accordingly, Respondent should be liable for these costs, totaling $67,087.68.
Findings Of Fact On May 30, 2008, FEC entered an Order of Probable Cause charging Respondent with the following violations: Count 1: On or about January 10, 2007, Respondent violated Section 106.07(1), Florida Statutes, when he failed to file with the filing office his 2006 Q4 CTR due on that date, listing all contributions received and all expenditures made, by or on behalf of the candidate. Count 2: On or about May 7, 2007, Respondent violated Section 106.141(1), Florida Statutes, by failing to properly dispose of surplus campaign funds within 90 days after he was eliminated and to file a report reflecting the disposition of those funds, when Respondent failed to qualify between January 30, 2007 and February 6, 2007, and failed to dispose of funds in his campaign account and file a report reflecting the disposition of the funds on or before May 7, 2007. On or about December 16, 2008, Respondent was personally served with the Order of Probable Cause by process server. Because Respondent neither elected to have a formal or informal hearing conducted before FEC nor elected to resolve the complaint by consent order within 30 days after the date of the filing of FEC's allegations, on January 30, 2009, FEC referred the case to the Division of Administrative Hearings (DOAH), pursuant to Section 106.25(5), Florida Statutes (2007). The case was filed at DOAH on February 2, 2009. On February 6, 2009, Petitioner filed and served its First Requests for Admission upon Respondent. Respondent had 35 days, including time for mailing, to either admit or deny each of the Requests for Admission. Rule 1.370(a), Florida Rules of Civil Procedure provides: Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request . . Thirty-five days from February 6, 2009, was March 13, 2009. Respondent failed to file a response to FEC's Requests for Admission by March 13, 2009. Additionally, Rule 1.370(b), Florida Rules of Civil Procedure, provides: Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. On March 17, 2009, Petitioner filed its Motion for Summary Final Order, based on the unanswered Requests for Admission, and, therefore, based upon the conclusively established admissions of fact. Respondent filed no response in opposition to the Motion for Summary Final Order, as permitted by Florida Administrative Code Rule 28-106.204. On April 3, 2009, an Order to Show Cause was entered, requiring Respondent to show cause by April 10, 2009, why a Summary Final Order should not be entered against Respondent. Respondent did not file any response. The April 3, 2009, Order to Show Cause gave Respondent a final opportunity to dispute any or all facts, to set aside the Requests for Admission, or to otherwise show cause why the Motion for Summary Final Order should not be granted. Respondent has not shown good cause. Respondent's failure to provide a written answer or objection to FEC's Requests for Admission conclusively establishes the following determinative facts, which prove the charges herein:1/ Respondent signed a Statement of Candidate form for Jacksonville City Council, District 7, on June 8, 2005. Respondent filed an Appointment of Campaign Treasurer and Designation of Campaign Depository for Candidates (DS-DE-9) on or about June 8, 2005, designating himself as the treasurer of his campaign. Respondent did not file his 2006 Q4 Campaign Treasurer's report by January 10, 2007. Respondent received a Memorandum from Beth Fleet, Director of Candidate Administration, dated January 12, 2007, notifying him that he failed to file his 2006 Q4 Campaign Treasurer's Report that was due on January 10, 2007. Respondent received an April 27, 2007, Memorandum from Jerry Holland, Duval County Supervisor of Elections, notifying Respondent that he failed to file his 2006 Q4 Campaign Treasurer's Report that was due on January 10, 2007. Respondent's failure to file his 2006 Q4 Campaign Treasurer's Report is a violation of Section 106.07(1), Florida Statutes. Respondent's Termination Report (TR) was due on May 7, 2007. Respondent received a letter dated April 27, 2007, from Jerry Holland, Duval County Supervisor of Elections, notifying him that his TR was due on May 7, 2007. Respondent did not file his TR with the Duval County Supervisor of Elections by May 7, 2007. Respondent's failure to file his TR by May 7, 2007, is a violation of Section 106.141(1), Florida Statutes.
The Issue Whether Respondent violated Section 112.313(7)(a), Florida Statutes, "by having a contractual relationship with an individual engaged in a lawsuit involving the Town" and, if so, what is the appropriate penalty.
Findings Of Fact Based on the evidence adduced at the public hearing and the record as a whole, including the parties' Joint Prehearing Stipulation, the following findings of fact are made: Respondent is a retired executive of W.R. Grace and Company. He is now, and has been since February 2002, a member of the Ocean Ridge Town Commission (Town Commission), the "legislative and policy making body" of the Town of Ocean Ridge, Florida (Town). Among the duties and responsibilities of the Town Commission is to determine, based on what is "in the best interests of the Town," whether the Town should litigate to resolve a dispute in which it is involved or whether it instead should seek a settlement and, if so, "on what terms." Before making any such determination in a particular case, the Town Commissioners have the opportunity to discuss the matter with the Ocean Ridge Town Attorney, Kenneth Spillias, Esquire, of the law firm of Lewis, Longman & Walker, P.A. Mr. Spillias has been the permanent Ocean Ridge Town Attorney since October 1999. He and his firm are compensated by the Town on an hourly basis. Respondent has been a resident of the Town since the early 1990's. His residence, which he and his wife own, is located at 5 Osprey Court (Lot Number 0050) in Ocean Shore Estates, a residential development in the Town. The northern half of Lot Number 0050 (also referred to herein as the "Schulte Property") is bordered on the east by Lot Number 0002, the "land-locked piece of property" referenced in the "Statement of Positions" portion of the parties' Joint Prehearing Stipulation. Other lots abutting this "land-locked piece of property" are: to the north (from west to east)- Lot Number 0160, which has a street address of 566 David Lane and is owned by Cheryl Olanoff, a part-time school teacher; Lot Number 0140, which has a street address of 5691 David Lane and is owned by Robert Katz; and Lot Number 0120, which has a street address of 18 Adams Road and is owned by Randy Allen; to the east (from north to south)- Lot Number 0110, which has a street address of 7 Beachway North and is owned by David Pollay; Lot Number 0100, which has a street address of 5 Beachway North and is owned by Richard Lucibella; and Lot Number 0090, which has a street address of 3 Beachway North and is owned by William and Anita Finley; to the south (from east to west)- Lot Number 0120, which has a street address of 207 Beachway Drive and is owned by Frederic Rose; and Lot Number 0080, which has a street address of 205 Beachway Drive and is owned by George Elder and his wife, Jo Ann Engelhardt; and to the west, in addition to the Schulte Property- Lot Number 0040, which is located immediately to the north of the Schulte Property, has a street address of 7 Osprey Court, and is owned by Joseph Park. Lot Number 0160 (owned by Ms. Olanoff) and Lot Number 0140 (owned by Mr. Katz) front on, and are separated by, the southern half of David Lane, a north-south roadway, which extends from Adams Road on the north to Lot Number 0002 (owned by the Kelsos) on the south (where it dead-ends). Another north-south roadway in the Ocean Shore Estates development is Beachway North, a private roadway owned by the Beachway North Association that is paved and at least 20 feet wide. It runs parallel to, but does not "directly touch," the eastern boundary of Lot Number 0002. "There is a few feet of grass between [Lot Number 0002] and [Beachway North]." This property separating Lot Number 0002 and Beachway North is privately owned. In 1991, at or around the time Respondent and his wife purchased Lot Number 0050, they inquired about the possibility of also purchasing Lot Number 0002, then-owned by the National Wildlife Federation (Federation), which was (and still is) an undeveloped, vacant lot zoned (like the other lots surrounding it in the development) for single-family residential use. During his discussions with the Federation, Respondent gave "assurances that, if [the Federation] would sell the property to [him,] [he] would restrict it from ever being developed." Respondent's interest in Lot Number 0002 stemmed from his belief that its development could, under certain circumstances, negatively impact the value of his neighboring property. The Federation declined Respondent's offer, but advised him that if the property were ever to be placed on the market, Respondent "would certainly be given a shot at it." Mr. Lucibella, the owner of Lot Number 0100, was also interested in purchasing Lot Number 0002 from the Federation. In December 1999, the Federation sold Lot 0002 to Town residents Betty Kelso and her husband, Scott Kelso, much to the displeasure of Respondent, who had not even been given an opportunity to bid on the property. In November 1999, after the sales contract had been signed, but before the closing, Betty Kelso went around the Ocean Shore Estates development to introduce herself. Respondent was among those she met. During her conversation with Respondent, she told him that she and her husband had entered into a contract to purchase Lot 0002 and they intended to "build a single-family home for [themselves]" on the lot. Respondent, although "cordial" throughout the conversation, was "visibly upset" when Mrs. Kelso told him of her and her husband's plans for the lot. The Kelsos' ability to develop the property in accordance with their plans was dependent on there being sufficient access to the property (measured against the access requirements set forth in the Town's Land Development Code). The Kelsos were aware, before they purchased the property, that "there [might] be an access problem from information given to [them] at the Town Hall." They made a pre- purchase attempt to obtain from the Town Commission a variance from the Land Development Code's access requirements, but the Town Commission declined to grant their request on the ground that they did not have standing to ask for such a variance since they did not yet own the property. After learning of the Kelsos' purchase of Lot 0002 and their intentions to build on it, Respondent and other property owners in the Ocean Shore Estates development "banded together" in an effort to thwart the Kelsos' plans. In January 2000, Respondent, Mr. Lucibella, Mr. Katz, and Ms. Olanoff signed (as clients) a Retainer Agreement, agreeing to pay the law firm of Sweetapple, Broeker & Varkas (Sweetapple Firm) for legal services "in the matter of THE KELSO PURCHASE OF NATIONAL WILDLIFE PROPERTY." The group's objective was to prevent the Kelsos from gaining access to Lot 0002 from the north via David Lane. In the group's Retainer Agreement with the Sweetapple Firm, Respondent was designated as the "spokesman" for all of the client signatories. Because of her financial situation, Ms. Olanoff initially did not contribute at all to the payment of the bills for legal services provided under the agreement. After a period of time, however, she started paying 10 percent of each bill, with Respondent, Mr. Lucibella, and Mr. Katz paying 30 percent each. On June 8, 2000, other Ocean Shore Estates property owners, Mr. Rose, Mr. Elder, and Ms. Engelhardt, also entered into a Retainer Agreement with the Sweetapple Firm to receive legal services "in the matter of THE KELSO PURCHASE OF NATIONAL WILDLIFE PROPERTY." The focus of their concern was the Kelsos' gaining access to Lot 0002 from the south. Paragraph J. of their Retainer Agreement with the Sweetapple Firm provided as follows: The clients acknowledge that the attorneys are already representing Bernd A. Schulte and Richard Lucibella in this matter. The clients agree that Bernd A. Schulte will be their spokesman.[1] Further, the strategy employed by the attorneys during the course of the representation must be approved by a majority of the clients. Shortly after this second Retainer Agreement was entered into, a determination was made that it would be best that the group trying to prevent the Kelsos from gaining access to Lot 0002 from the north (Northern Access Group) not be represented by the same law firm as the group attempting to stop the Kelsos from accessing Lot 0002 from the south (Southern Access Group). The Northern Access Group therefore terminated its relationship with the Sweetapple Firm and retained the services of the law firm of FitzGerald, Hawkins, Mayan & Cook, P. A. (FitzGerald Firm), with Respondent, Mr. Lucibella, and Mr. Katz each paying 30 percent of the cost of these legal services and Ms. Olanoff paying the remaining 10 percent. The issue of the Kelsos' entitlement to access to Lot 0002 was raised in Palm Beach Circuit Court Case No. CL 00-3364 AN. Case No. CL 00-3364 AN began when Ms. Olanoff filed a complaint against the Kelsos, alleging that the Kelsos had trespassed on her property.2 The Kelsos responded by filing a counterclaim against Ms. Olanoff and third party complaints against the Town, Mr. Katz, Mr. Elder, Ms. Engelhardt, Mr. Rose, Coral Gables Federal Savings and Loan Association, and Merrill Lynch Credit Corporation, claiming that they (the Kelsos) were entitled to access to Lot 0002 via David Lane or, in the alternative, from the south. In response to the Kelsos' third party complaint against it, the Town, through Mr. Spillias, on or about June 23, 2000, filed an Answer, Affirmative Defenses, Counterclaim and Crossclaim in Case No. CL 00-3364 AN. The Towns' counterclaim and crossclaim read as follows: The Town, by Counterclaim sues the KELSOS, and by Crossclaim sues CHERYL H. OLANOFF ("OLANOFF") and ROBERT KATZ ("KATZ"), and alleges: COUNT I DECLARATORY RELIEF (All Parties) This is an action for declaratory relief pursuant to Chapter 86, Florida Statutes, and is within the jurisdiction of this Court. The acts and properties at issue occurred or are located in Palm Beach County, Florida. The KELSOS, as set forth in their action against the Town, assert they enjoy an easement over OLANOFF'S property for road right-of-way purposes and that it is the Town's responsibility to enforce the KELSOS' right to use that easement. The Town is in doubt regarding its rights and responsibilities pursuant to the deeds from which OLANOFF deraigned her title to the subject property both with respect to the existence of an easement for the general public or, more specifically, for the KELSOS and, should such an easement exist, with respect to the Town's obligation to enforce such an easement against OLANOFF. Given the demands of the KELSOS with respect to the OLANOFF property, the Town is entitled to have its doubt regarding its rights and responsibilities removed by declaration of this Court. As further set forth in the KELSOS' action against the Town, specifically in paragraphs 12 and 13 thereto, a quitclaim deed was executed July 21, 1966, by Edith G. Henry and James Henry, predecessors in title to KATZ, conveying to the Town the eastern half of David Lane lying adjacent to lots 13 and 14 of the non-recorded plat at Ocean Shore Estates for the specific stated purpose of creating, among other things, a road right-of-way. A copy of said deed is attached hereto as Exhibit "A." There presently exist obstructions on the ten foot right-of-way deeded to the Town in the form of a patio, curbing and trees emanating from the adjoining property owned by KATZ and either placed and/or maintained thereon by KATZ. Despite demand by the Town that KATZ remove the obstructions located on the right-of-way, KATZ has refused to do so asserting that he has a superior right of ownership to the ten foot right-of-way to the Town. The Town is in doubt about its rights under the deed and, particularly given the KELSOS' demand for access to the right-of- way, is entitled to have such doubt removed by this Court. WHEREFORE, the Town respectfully requests that this Court issue a declaratory judgment declaring the Town's rights and responsibilities under the deeds deraigning title of those portions of David Lane adjoining or located on the property or properties of OLANOFF, KATZ and the KELSOS, awarding the Town its costs and providing such other and further relief as this Court deems just and proper. COUNT II INDEMNIFICATION (Olanoff and Katz) The Town reasserts and readopts the allegations contained in paragraphs one (1) through nine (9) above as if fully set forth herein. This is an action for additional and supplemental relief pursuant to Chapter 86, Florida Statutes. In their action against the Town, the KELSOS seek damages for their fees and costs in bringing their action for declaratory relief and for requiring KATZ to remove the obstructions from the right-of-way adjoining his property. Any liability for the Town for damages to the KELSOS would be derivative based on OLANOFF'S and/or KATZ'S refusal to allow access and/or remove obstacles to access over the easement and right-of-way at issue. The Town is entitled to indemnification from OLANOFF and/or KATZ to the extent that it is found liable in damages due to OLANOFF'S and/or KATZ'S actions in this cause. WHEREFORE, the Town demands judgment against OLANOFF and KATZ for damages by way of indemnification, including its reasonable attorney's fees and costs, as well as such other and further relief as this Court deems just and proper. Ms. Olanoff and Mr. Katz, through the FitzGerald Firm, filed the following response to the Town's Crossclaim against them: The Cross-Defendants, ROBERT F. KATZ ("KATZ") and CHERYL H. OLANOFF ("Olanoff"), in answer to the Cross-Claim of the TOWN OF OCEAN RIDGE ("the TOWN"), state as follows: Admitted that this is an action for declaratory relief, which comes within the jurisdiction of this Court. Otherwise, denied. Admitted. The pleadings of KELSOS speak for themselves. To the extent that the TOWN's description is inconsistent with those pleadings, the TOWN's assertions are denied. Without knowledge as to the TOWN's doubt and therefore denied. Specifically denied as to the existence of easements and the TOWN's obligations to enforce same. Denied. Without knowledge and therefore denied. KATZ denies this paragraph; OLANOFF is without knowledge and therefore denies same. KATZ admits that he possesses a superior right of ownership; otherwise, he denies this paragraph. OLANOFF is without knowledge and therefore denies same. Denied. The responses of KATZ and OLANOFF to Paragraphs 1-9 are hereby readopted and reaverred. Admitted that the Town requests such relief; denied that such relief is appropriate. The pleadings of KELSOS speak for themselves. To the extent that the TOWN's description is inconsistent with those pleadings, the TOWN's assertions are denied. Denied. Denied. WHEREFORE, Cross-Defendants KATZ and OLANOFF demand that Cross-Plaintiff the TOWN go hence without day. MOTION TO STRIKE PRAYER FOR ATTORNEY'S FEES Cross-Defendants, KATZ and OLANOFF, move this Court to strike the TOWN's prayer for attorney's fees, and as grounds therefore states that the TOWN has failed to allege a legal basis for the recovery of fees. AFFIRMATIVE DEFENSES For a first affirmative defense, KATZ and OLANOFF state that the TOWN is not entitled to indemnification because it is not without fault and its liability, if any, to KELSOS is not solely vicarious. For a second affirmative defense, KATZ and OLANOFF state that the TOWN is not entitled to indemnification because KATZ and OLANOFF are not at fault. For a third affirmative defense, KATZ and OLANOFF state that the TOWN is not entitled to the declaratory relief which it seeks because it has failed to include all persons who have or might claim any interest in the issues it has presented to this Court. For a fourth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to an easement by right because David Lane is not a public, but a private right-of-way, and any easements are for the benefit of residents of David Lane and the non-recorded plat of Ocean Shore Estates. For a fifth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to an easement by right because the "Quit- Claim Deed" was recorded in order to provide access for the residents of David Lane and/or the non-recorded plat of Ocean Shore Estates, and was not intended to create a right-of-way for the general public. For a sixth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to an easement by right because no easements were ever granted to them, or their predecessors in interest. For a seventh affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to an easement by right because the TOWN has never accepted any easement on David Lane. For an eighth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to an easement by right because the TOWN is estopped from asserting access on David Lane by its conduct which includes, inter alia, public statements that access is limited to residents of Ocean Shore Estates, and its insistence that Olanoff pay for maintenance and repairs to David Lane. For a ninth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to an easement by right because the TOWN has abandoned any right of access it may wish to assert on David Lane. For a tenth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to an easement by right because any claims of access over Lot 14 are barred by the doctrine of adverse possession. For an eleventh affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to an easement by right because any claims of access over David Lane are barred by the doctrine of "balancing equities." For a twelfth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to a statutory easement by necessity because this property is located within a municipality. For a thirteenth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to a statutory easement by necessity because David Lane is not the nearest practicable route to the nearest practicable road. For a fourteenth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to a statutory easement by necessity because there is no necessity for access over David Lane, as the KELSOS have a right to access over other properties. For a fifteenth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to a statutory easement by necessity because there is no necessity for access over David Lane because the KELSOS have implied (common law) easement by necessity over other properties. For a sixteenth affirmative defense, KATZ and OLANOFF state that claims of access by the public and the parties to this action are barred by the Marketable Records Title Act. For a seventeenth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to any of the relief of which they are seeking including, but not limited to, injunctive relief, mandatory or prohibitive, because the granting of such relief would be inequitable for a variety of reasons including, but not limited to, the following: KELSOS knew, before closing, that they did not have clear access to the property and, nevertheless, elected to purchase the property; KELSOS recognized, before, closing, that the purchase price was substantially below its actual market value,[3] and knew that its fair market value would increase substantially if they could obtain access to the property; The granting of an easement over David Lane would enhance the value of the KELSO property and, at the same time, impair the market value of the KATZ and OLANOFF properties, leaving KELSOS unjustly enriched; and The relief requested would unfairly diminish the ability of KATZ and OLANOFF to enjoy the use of their homes. For a[n] eighteenth affirmative defense, KATZ and OLANOFF state that the TOWN's requests for relief are barred by the doctrine of "balancing equities." For a nineteenth affirmative defense, KATZ and OLANOFF state that the TOWN's requests for relief are barred by the doctrine that "he who seeks equity must do equity." For a twentieth affirmative defense, KATZ and OLANOFF state that the TOWN's requests for relief are barred by the doctrine of "unclean hands." For a twenty-first affirmative defense, KATZ and OLANOFF state that they are entitled to compensation for any servitude, easement, use or other restraint placed upon their property. WHEREFORE, ROBERT F. KATZ and CHERYL H. OLANOFF request the dismissal of the TOWN's claims against them, attorney's fees pursuant to 57.105, Florida Statutes, costs, and such other relief as this Court deems proper. Efforts to amicably resolve the dispute were made prior to Respondent's election to the Town Commission, but they were unsuccessful and the litigation therefore continued. Although he was not a named party in the case, Respondent played a significant and visible role in these settlement efforts. Mr. Lucibella also participated. There came a point in time when, upon learning that Ms. Olanoff and Mr. Katz were contemplating "suing the Town for flooding damage which had nothing to do with the Kelsos," Respondent and Mr. Lucibella "pulled out" of their agreement to help pay for the legal services the FitzGerald Firm was providing Ms. Olanoff and Mr. Katz in Case No. CL 00-3364 AN, leaving Ms. Olanoff and Mr. Katz to "split[] that bill 50-50." The trial in Case No. CL 00-3364 AN was scheduled to commence the first week of March 2002. Prior to the scheduled commencement of the trial, the parties engaged in further settlement negotiations. Mr. Spillias was given "the authority to at least enter into [settlement discussions, on behalf of the Town] and submit any proposed settlement agreement to the [Town] Commission." It was "very clear" to Mr. Spillias, based on what he had been told by the "the various commissioners" with whom he had discussed the matter [Respondent not being one of them], that it was "their greatest desire to have this case settled, particularly among the adversarial residents," and that "they did not want to go to trial." Settlement negotiations this time produced a proposed settlement agreement. On March 2, 2002, Steven Mayans, Esquire, of the FitzGerald Firm (representing Ms. Olanoff and Mr. Katz) sent the following letter by facsimile transmission to Linda Conahan, Esquire, of the law firm of Gunster, Yoakley & Stewart (representing the Kelsos) and Mr. Spillias (representing the Town): This letter confirms the parties' settlement of the above referenced case [Olanoff v. Kelso, et al, Case No. CL 00-3364 AN] between Cheryl Olanoff ("Olanoff"), Robert Katz ("Katz"), J. A. Scott Kelso and Betty Kelso (collectively "Kelsos"), and the Town of Ocean Ridge ("Town") on the following terms and conditions: Kelsos shall convey by quit claim deed to Olanoff twenty-five feet (25') of property immediately south of Olanoff's property line, but excluding from said property the westerly 10 feet (10') of David Lane as shown on the plat of Beachway North as recorded at Plat Book 45 Page 74 of the Public Records of Palm Beach County, Florida, and twenty five feet (25') immediately south therefrom. Kelsos shall convey by quit claim deed to Katz twenty-five feet (25') of property immediately to the south of Katz's existing property line. Katz shall grant back to Kelsos an easement for right of way and utility purposes in perpetuity over said twenty-five feet (25'); however, the granting of such easement shall in no way inhibit Katz's ability to expand or add on to his existing structure. 2a. In addition, Kelsos shall convey by quit claim deed to Katz 25 feet (25') immediately to the south of the existing 20 foot (20') right of way designated as David Lane on the Plat of Beachway North as recorded at Plat Book 45 Page 74 of the Public Records of Palm Beach County, Florida. Katz shall simultaneously grant to Kelsos and Olanoff an easement for right of way and utility purposes in perpetuity over said twenty-five feet (25'). The Kelsos agree to maintain this 20' x 25' right of way. Kelsos shall pay Olanoff $50,000, payable $25,000.00 upon final settlement (approval by all parties and the Town Commission) and $25,000.00 in installments of $2,000 each month for 11 months with a final installment of $3,000 in the 12th month. Olanoff shall grant to Kelsos a ten foot (10') easement in perpetuity for right of way and utilities along the east portion of her property (west side of David Lane). Katz and Town confirm Kelsos' right to access along the ten feet (10') to the west of his property (existing east side of David Lane), or, if necessary, Katz grants Kelsos a ten feet (10') easement in perpetuity for right of way and utilities to the west of his property (existing east side of David Lane). By virtue of the agreements herein, the Town declares the public access along the ten feet (10') of Katz's property (existing east side of David Lane) as unneeded surplus property and agrees to abandon it as well as the ten eastern feet (10') of Olanoff's property (existing west side of David Lane). For all intents and purposes, the resulting easements will result in a private road for Katz, Olanoff, Kelsos, and their successors and assigns. Counsel for the Town agrees to expedite the abandonment process. Katz guarantees that should the Town abandon the public right of way over the ten feet (10') west of his property (existing east side of David Lane) then Katz grants to Kelsos a ten foot (10') easement in perpetuity for right of way and utilities. The parties agree that the existing trees upon a portion of the east side of David Lane shall be maintained. Olanoff grants Kelsos an additional easement in perpetuity for right of way and utilities over an additional portion of her property, such as would allow a reconfiguration of the Kelsos' twenty-foot (20') easement around the Katz's trees and front porch. Town recognizes, or if need be, approves, the reconfigured twenty foot (20') easement for right of way and utilities purposes. Kelsos agree that heavy construction vehicles will not use the easement on weekends. Kelsos agree to be responsible for any damages or required improvements to the roadway or Katz and Olanoff's properties resulting from construction, improvements or construction vehicles on the Kelsos' property. Kelsos agree that the development of their property shall be designed in such a way as not to worsen the drainage problem for Katz or Olanoff. Town acknowledges that the twenty foot (20') easement as provided for above is sufficient and adequate access for approval by the Town for a building permit based upon the plans previously submitted to Town by Kelsos. Subject to air conditioning approval and Paragraph 13 regarding access, Town acknowledges that the Kelsos' plans previously submitted to Town will be approved by Town and forwarded to the County Building Department for issuance of a building permit. Town acknowledges that the road right of way across and for access through Kelsos' property will not reduce the calculation of "buildable acreage" pursuant to Town's Code of Ordinances for land development code purposes. Town acknowledges that Kelsos' property is properly zoned for the potential of being subdivided into two (2) buildable lots, subject to compliance with all Town, County, and State building land development regulations. If Kelsos in the future subdivide and sell a part of their property, they agree to give Olanoff and Katz a right of first refusal to purchase said property on the same terms and conditions available to a third party. Kelsos agree to allow Olanoff, her successors and assigns in perpetuity, when needed, overflow parking for a maximum of five cars just south of her property. Parking for additional cars needs permission of the landowner. All parties shall bear their own attorney's fees and costs of litigation.[4] All claims raised in the pending litigation as between Kelsos, Olanoff, Katz, and Town shall be dismissed with prejudice upon final approval of this agreement. Nothing contained herein shall be viewed as a waiver by the Town of any present or future building, land development or other regulations as they may apply to the properties owned by Olanoff, Katz and the Kelsos, and as may be owned by their successors and assigns, except as specifically provided for herein. Notwithstanding the execution of this agreement, if the Kelsos discover that the access to their property contemplated by the parties herein is deemed insufficient by any governing agency for the issuance of building permits, the agreement and all of its provisions shall be null and void. Notwithstanding the execution of this agreement by counsel for the Town, this agreement is subject to approval by Town Commission of the Town of Ocean Ridge. Should the Town Commission fail or refuse to approve this agreement, the agreement and all of its provisions shall be null and void. Counsel for the Town shall endeavor to convene a special meeting of the Town Commission within one week of execution of this agreement for the purpose of obtaining final approval. However, final Town approval must be obtained within three weeks of execution of this agreement or the agreement and all of its provisions shall be null and void. It is the intention of the parties hereto that all easements and rights granted appurtenant thereto shall inure to the parties successors, heirs and assigns in perpetuity. The parties further agree to execute such additional document as shall be necessary to put the agreements hereto into effect and to record all conveyances and easements in the public records. If I have accurately set forth the parties' agreement in this matter, please sign where indicated for presentation to Judge Rapp on Monday morning asking that the trial be rolled to his next calendar to allow time for the Town's approval. Thank you. Sometime prior to the scheduled March 4, 2002, commencement of the trial in Case No. CL 00-3364 AN, Mr. Katz, Ms. Olanoff, the Kelsos, Mr. Spillias, Ms. Conahan, and E. Cole FitzGerald, III, Esquire, of the FitzGerald Firm signed "where indicated," signifying that they were of the view that, in the letter, Mr. Mayans had "accurately set forth the parties' agreement in this matter." The morning of March 4, 2002, the judge in Case No. CL 00-3364 AN, upon being advised by the parties that the they "had a potential settlement agreement that had to be presented to the Town Commission for its approval," continued the trial that was set to begin that day. At the regular Town Commission meeting held later that same day (March 4, 2002), the Town Commission was briefed on the developments in Case No. CL 00-3364 AN. The minutes of that meeting read, in pertinent part, as follows: 8b. Kelso litigation and Special Town Commission Meeting By: Kenneth Spillias, Town Attorney Atty Spillias explained that the trial had been scheduled to begin earlier this day, but that through extensive negotiations in the past three weeks an agreement had been signed dependent upon Town Commission approval. He stated that the Town would be asked to abandon 10' which is currently in dispute between Robert Katz and the Town. He suggested that a Special Town Commission meeting be set up this week to answer questions and discuss the settlement. He stated that he would be suggesting a few minor revisions, but the substance of the agreement would remain the same. He stated that it would take a public hearing to approve the abandonment by the Town. The Town Commission concurred to have the Special Meeting at 8:00 A.M. on Thursday, March 7th. Rich Lucibella, 7 Beachway N, stated that he would like to comment on the agreement to which Atty Spillias stated that he should comment at the Special Meeting since the Town Commission has not yet had a chance to review the proposed agreement. Mr. Lucibella stated that Atty Spillias has characterized that the agreement only includes the Town giving up a 10' portion of the right-of-way, but that there are other items in the agreement which will need to be discussed. Atty Spillias stated that he did not advise that the Town's only concession would be a 10' portion of a right-of-way to Mr. Katz. Atty Spillias advised that Comm Schulte would be declaring a conflict on this issue. Mr. Spillias had spoken with Respondent some time after Respondent's election to the Town Commission (and before the March 4, 2002, Town Commission meeting) about "whether [Respondent] should vote on issues involving the Kelso property and the Kelso litigation." During their discussion, Mr. Spillias "explained to [Respondent] the conflict of interest rule." Respondent, in turn, informed Mr. Spillias that he felt he had "an interest in the outcome of the [Kelso] litigation because what did or didn't happen on that property would have an impact on [Respondent's] property" and that he therefore "would abstain from voting" given what Mr. Spillias had told him about the "conflict of interest rule." The special Town Commission meeting to discuss and consider the proposed settlement agreement was held on March 7, 2002, as scheduled. As the minutes of the meeting reflect, "[p]rior to any discussion, [Respondent] declared a conflict and stepped off the dais" and the Town Clerk "advised that she would have a Voter Conflict form prepared for his signature." Among those who spoke at the meeting were Mr. Spillias, Mr. FitzGerald, Ms. Conahan, Ms. Olanoff, Mr. Lucibella, Mr. Finley, and Norman Malinski, Respondent's counsel of record in the instant case. In his comments to the Town Commission, according to the minutes of the meeting: Atty Spillias summarized the events leading up to this litigation and the settlement agreement distributed to the Commission on March 4, 2002 along with his proposed modifications . . . . He concluded by recommending approval of the agreement with his modifications and the reconfiguration drawing submitted by . . . Mr. and Mrs. Kelso showing the new boundaries and the 20' access. He stated that [t]his has been a long and torturous litigation. He added that he feared that if the Town continued to be caught in the middle between neighbors the case would go to trial and whoever lost would appeal and costs above the $60,000 would occur. * * * Atty Spillias commented that the suits involving George Elder and Ann Engelhardt would be dismissed if the agreement is executed. * * * . . . . Atty Spillias suggested reformatting the agreement so that it separates what the Town agrees to follow and what the parties agree to with each other. Atty FitzGerald and Atty Conahan agreed so long as the terms remain the same. . . . The minutes of the meeting indicate the following regarding the action taken by the Town Commission: Comm Aaskov moved to approve the settlement agreement subject to the modifications suggested by the Town Attorney, and the new format to be approved by the Town Commission, with the most recent reconfigured drawing, and that the advertisement for the hearing for the abandonment be scheduled for the regular meeting to be held April 1, 2002. Comm Bingham seconded the motion. Mayor Kaleel clarified that the Kelsos would investigate the possibility of constructing some sort of turn-around for the Public Safety Dept. Motion carried -- Yea 4 (Schulte abstain). Respondent did not "want the [proposed] settlement agreement [to be approved] because it would grant access to the Kelso property." Moreover, he "also thought it would violate the Town Code." He did not publicly air these views at the meeting, however. Following the meeting, Respondent signed the "Voter Conflict form" that the Town Clerk had prepared for him. Typed on the form was the following description of the "measure before [Respondent's] agency and the nature of [his] conflicting interest in the measure": A discussion regarding the settlement of a lawsuit in which I was involved in the mediation process and of which the ultimate result may [a]ffect my property value. Although she signed the proposed settlement agreement and even personally negotiated some of its terms, Ms. Olanoff was "never really ever happy with it." She "thought that [she] was getting [a] raw deal," but nonetheless agreed to the "deal" because of the "pressure" she was under (due, primarily, to her "lack of money to continue to pay" the costs of litigating). Before signing the agreement, she had contacted Respondent, telling him that she did "not want to do this" and asking him for his financial help. Respondent, however, had declined to provide her with any assistance. Some time after the proposed settlement agreement had been signed, Ms. Olanoff "bumped into" Mr. Lucibella on the street and talked about the possibility of Mr. Lucibella's and Respondent's providing her with the funds she needed to continue to litigate against the Kelsos should the proposed settlement agreement expire without being finally approved by the Town Commission. Mr. Malinski, on behalf of Respondent and Mr. Lucibella, drafted a proposed agreement providing for Ms. Olanoff to receive such financial assistance from Respondent and Mr. Lucibella. On or about March 18, 2002, Mr. Malinski sent, by facsimile transmission, an unsigned copy of the proposed agreement he had drafted to Ms. Olanoff's then-attorney, Mr. FitzGerald, for Mr. FitzGerald's review and consideration. The proposed agreement "contained a condition that [Mr. FitzGerald] hide this agreement" from Mr. Katz, the Town, and the Kelsos. Mr. FitzGerald thought that the proposed agreement "was illegal for many, many different reasons" and that "[i]t would be unethical for [him] to even counsel [Ms. Olanoff] about this document." He decided that, under the circumstances, he and his firm should no longer represent either Ms. Olanoff or Mr. Katz and he took action to effectuate such a withdrawal. Shortly thereafter Edward Marod filed a Notice of Appearance as counsel of record for Ms. Olanoff in Case No. CL 00-3364 AN. On March 25, 2002, Respondent, Mr. Lucibella, and Ms. Olanoff entered into an Agreement and Option Agreement,5 which read, in pertinent part, as follows: WHEREAS, there are currently pending in the Palm Beach County Circuit Court several related lawsuits (hereinafter "the Litigation") including an action captioned Cheryl H. Olanoff v. J. A. Scott Kelso, Palm Beach County Circuit Court Case No. CL 00- 3363 AN, wherein J. A. Scott Kelso and Betty Kelso are seeing access to certain property they own in Palm Beach County, Florida; and WHEREAS, Olanoff, as an abutting owner to the Kelso property[,] is a Defendant in this action, that Kelso[]s seeking to acquire their access by crossing over a portion of the property owned by Olanoff; and WHEREAS, there are a number of property owners abutting the Kelso[]s['] property, some of whom are Defendants to the above described action and some of whom are interested parties by virtue of being abutting property owners; and WHEREAS, Olanoff and several other parties to the above described litigation have entered into a Settlement Agreement (hereinafter the "Settlement Agreement") dated March 2, 2002 . . . ; and WHEREAS, the Settlement Agreement specifically provides that it shall be null and void in the event final approval of it[]s elements is not obtained from the Town of Ocean Ridge within three (3) weeks) of its execution, that is, by March 23, 2002 if execution is deemed to be March 2, 2002, the date of the letter, or March 25, 2002 if execution is deemed to be March 4, 2002, the date the last party affixed his or her signature; and WHEREAS, the Settlement Agreement, at this time, is an executory agreement with regard to Olanoff, in that she has received none of the performance promised for her participation in the Settlement Agreement as of this date; and WHEREAS, in addition to being an executory agreement at this time, Olanoff desires to exercise her right to withdraw from the Settlement Agreement in the event final approval is not secured from the Town of Ocean Ridge by March 25, 2002; and WHEREAS, Optionors desire to acquire property rights in the Olanoff property, including an option to purchase same and the right to both defend and, as appropriate, settle the above described litigation with respect to access sought over the Olanoff property. NOW AND THEREFORE, in consideration of the payment of TEN DOLLARS ($10.00) and other good, valuable and sufficient consideration, which other consideration is further identified herein, the Optionors and Olanoff hereby covenant and agree as follows: Incorporation by Reference: The parties agree that all of the recitations contained in the Whereas provisions are true and accurately express the intentions of the parties to this Agreement. Withdrawal from March 2, 2002, Settlement Agreement: Olanoff agrees, when permitted to so under the terms of the Settlement Agreement, to furnish to all other signatories of the Settlement Agreement, written notice of her withdrawal from it. Such notice shall be in the form of a written communication by counsel for Olanoff to counsel for all parties who have executed the Settlement Agreement, such communication being made by telecopier after 5:00 P.M. on March 25, 2002 and by First Class Mail. Thereafter, Olanoff shall not enter into any further agreement with respect to her property or the settlement of litigation without the express written consent of Optionors. Grant of Option: For a period of five (5) years from the date of this Agreement, or for a period ending ninety (90) days after the full execution and performance of any settlement of the Litigation, or for a period ending upon the sale of the Optioned Property pursuant to the terms of this Agreement, whichever is a shorter period of time, Olanoff grants to Optionors an option to purchase her property, located at 566 David Lane, Town of Ocean Ridge, Palm Beach County, Florida, . . . . * * * Conduct of Litigation: [T]he Optionors shall, immediately upon execution of this Agreement, assume all obligations for conduct of the litigation described as Cheryl H. Olanoff v. J.A. Scott Kelso and Betty Kelso, Palm Beach County Circuit Court Case No. CL 00-3364 AN. Such obligations shall include, without limitation, the obligation to reimburse Olanoff for all attorney's fees and costs paid in such litigation, together with the obligation of paying all attorney's fees and costs to be incurred in such litigation; the obligation of determining counsel for Olanoff in this litigation. Optionors will undertake all efforts necessary to secure an outcome to this litigation which will result in the Olanoff property not being utilized as access to the Kelso property. in the event the Kelsos either are or appear to be approaching success in securing access over the Olanoff property, the Optionors will utilize their best efforts to fashion alternatives by way of additional litigation or settlement which will result in the Olanoff property not being utilized to furnish access to the Kelso[]s['] property. Optionors will utilize best efforts to maintain the vegetation and green barrier between the Olanoff and Katz properties, such obligation including the obligation to replace any foliage and vegetation which may be removed as a result of the pending litigation. Obligations of Olanoff: As additional undertakings on the part of Olanoff, Olanoff agrees to: execute all documents necessary to formalize the Option Agreement granted herein, or a memorandum thereof, in order that same may be suitable for recording in the Public Records of Palm Beach County, Florida. until such time as Optionors acquire title to the Optioned Property, or until the Optioned Property is otherwise sold as authorized by this Agreement, permit the pending litigation, and any ancillary proceedings resulting from this litigation, to be conducted in her name, the name of her estate, the name of her heirs, or in the event she is incapacitated, the name of her legal guardian, subject to the discretion and control of Optionors[.] vigorously pursue all available sources of insurance coverage and reimbursement relating to her being a defendant in this litigation, including homeowner's and title insurance. With respect to any sums recovered as defense costs from any insurance, Optionors agree to accept two- thirds (2/3) of any such payment as reimbursement for their defense costs paid on behalf of Olanoff, permitting Olanoff to retain one-third (1/3) of any such sums recovered. maintain the negotiation, execution and existence of this Agreement confidential. The withdrawal from the March 2, 2002, Agreement is a material and significant consideration for the payments being made by the Optionors herein, and disclosure of this Agreement may affect the Town's actions in complying with its undertakings, thereby substantially and adversely affecting the property interests which the Optionors are acquiring herein and their property interests as abutting owners and such adverse affect is not readily subject to precise damage determination. Therefore, neither Optionors nor Olanoff may disclose the substance or existence of this Agreement to anyone other than their respective counsel, except as otherwise ordered by a court of competent jurisdiction. Obligations of Optionors: As additional obligations, the Optionors shall: advance Olanoff the sum of $10,000.00 in consideration of her entering into this Agreement. This sum of $10,000.00 is hereby allocated as a $7500.00 payment towards the obligations for defense fess and costs described above, as well as a total payment of $2500.00 for the option granted herein. However, all payments and undertakings by the Optionors herein shall be deemed as nonseverable consideration for all undertakings by Olanoff herein. Olanoff hereby acknowledges receipt of this $10,000.00. immediately undertake to determine and satisfy the outstanding balance due to Olanoff's counsel for her defense in the pending litigation, together with arranging for counsel for continuing representation. Amendments. No provisions of this Agreement may be amended or altered unless such amendment or alteration shall be in writing signed by all signatories to this Agreement. The Town Commission's not having taken final action on the proposed agreement to settle Case No. CL 00-3364 AN, Ms. Olanoff's new attorney, Mr. Marod, on March 26, 2002, sent, by facsimile transmission and United States Mail, to Mr. Spillias, Ms. Conahan, and Mr. FitzGerald the following letter: This letter is to inform you the deadline for completion of performance of the terms of the settlement agreement set forth in the correspondence from Steven Mayans dated March 2, 2002, between my client, Cheryl Olanoff, and Mr. Katz, Mr. and Mrs. Kelso and the Town of Ocean Ridge has now expired. Without limiting the generality of the foregoing, the requirements of the second sentence of paragraph 24 have not been met. Therefore, pursuant to its terms, the March 2, 2002 settlement agreement and all of its provisions are now null and void. Ms. Olanoff no longer wishes to settle. Please let me know how you wish to proceed to having the case re-scheduled for trial. Before sending this letter, Mr. Marod conferred with Respondent about the matter. At its regular meeting on April 1, 2002, the Town Commission was scheduled to consider a resolution "[e]videncing its intent to vacate and abandon its interest in any and all public right of way lying between Lot 14 and Lot 16 of the unrecorded plat of Ocean Shore Estates," as called for in the proposed settlement agreement. As the minutes of the meeting reflect, after the title of the resolution was read, "Comm Schulte declared that he had a conflict with this issue and moved down from the dais" and "Town Clerk Hancsak [then] advised that she would prepare a voter's conflict form for his signature." The minutes of the meeting further reflect that, thereafter, the following occurred at the meeting: Atty Spillias advised that the purpose of the resolution was the last step for a settlement in which the Town had agreed to abandon a 10' portion of Town right-of-way adjacent to Mr. Katz'[s] property and the public easement, if it exists, on David Lane on the land privately owned by Olanoff. He added that he had received a letter from Katz/Olanoff's attorney that he would no longer be representing them. He stated that Mr. Katz has not retained new representation as of yet, but Mrs. Olanoff had. Mrs. Olanoff's new attorney has taken the position that since the deadline for final approval of the agreement had passed, the agreement was null and void. Atty Spillias disagreed with this and sent documents to support the Town's position that it is an enforceable agreement, but it would go to trial on April 8th as previously planned. He explained that the Town could file a motion to enforce which would necessitate more litigation and suggested that the Town let the court decide and file a suit against Olanoff in the future for breach of contract, if the Town desires. Atty Spillias suggested that the resolution be tabled in case the agreement is found to be enforceable. He added that if the resolution is tabled, the public discussion must be limited to the tabling of the resolution and not the merits of the resolution. Atty Spillias concluded that although he does believe the agreement to be enforceable, he suggests that the Town go ahead with the court hearing on April 8th. Mayor Kaleel agreed adding that the Town would need to reserve [its] rights. Comm Aaskov moved to table Resolution No. 2002-08, seconded by Comm Bingham. * * * Roll call was taken on Comm Aaskov's motion. Motion carried-yea 3 (Schulte abstain). The minutes of the meeting further indicate that, during the public discussion on the motion to table the resolution, in response to comments made by Mr. Lucibella critical of the Town Commission's actions in connection with the Kelso litigation: Atty Spillias advised that at a mediation a year ago which involved Mr. Lucibella, Mr. Schulte and Mr. Rose, the Town put forth a significant effort to bring this issue to a resolution and even offered to put a significant amount of money into purchasing the property in a manner that would have resolved issues for everyone,[6] but they were not able to come to a final resolution. He added that the Town has not sued anyone except Mr. Katz to vacate the 10' of Town owned property. He stated that there is not a direct lawsuit against Mrs. Olanoff, but only a request of the court to clarify the Town's interest in her 10' easement. The Town was put in this position due a demand made upon the Town to make its right-of-way available to a property owner. He stated that although it sounds like the Town has spent a lot of money, under these circumstances the Town has been made to defend itself. He explained that this settlement agreement was intended to settle these differences between neighbors and now a Judge will be made to decide the outcome. Following the meeting, Respondent signed the Memorandum of Voting Conflict form that the Town Clerk had prepared for him. Typed on the form was the following description of the "measure before [Respondent's] agency and the nature of [his] conflicting interest in the measure": A discussion regarding the settlement of a lawsuit in which I was involved in the mediation process and of which the ultimate result may [a]ffect my property value. As Mr. Spillias had indicated would be the case, a judge did "decide the outcome" of the dispute concerning access to Lot 0002 on the merits (there having been no attempt made by the Town or any other party to the litigation to argue that the matter had been resolved by settlement). On June 13, 2002, Palm Beach County Circuit Court Judge Stephen Rapp rendered a Final Judgment of Declaratory Decree in Case No. CL 00-3364 AN, which provided as follows: THIS CAUSE came before the court for a Non- Jury Trial on June 10, 2002. Upon consideration of testimony of witnesses, evidence presented and arguments of counsel the Court makes the following findings of fact and conclusions of law: The Court finds that David Lane as depicted on the January 26, 2000 survey by O'Brien, Suiter & O'Brien, Inc., a copy of which is attached hereto and incorporated herein by reference and as set forth in the non-recorded plat of Ocean Shore Estates prepared by George S. Brockway, Engineer, for John H. Adams, Trustee, under said Engineer's File No. TMA-1017 and filed in the Palm Beach County Tax Assessor's Office as Assessor's Map #71, is a full 20 foot public right of way available for ingress and egress and all other lawful uses as such by the public. The Court further finds that there is a public right of way easement over the eastern 10 feet of Cheryl Olanoff's property more particularly described as follows . . . . The Court further finds that the remainder of David Lane as described above is owned by the Town of Ocean Ridge in fee simple. For the foregoing reasons, it is therefore ORDERED AND ADJUDGED as follows: The Kelsos are entitled to access their property pursuant to the 20 foot wide public right of way which is commonly known as David Lane and which is depicted as stated above. The Town of Ocean Ridge has a duty to clear and maintain that portion of David Lane deeded to them by Katz. Due to the configuration of the road and surrounding properties the town, as a condition of issuance of a building permit perhaps, might be authorized to require the Kelso[s] to dedicate a portion of their property for use as a public turn around to accommodate public service trucks e.g., street sweepers and the like. Due to the fact that the Kelsos are entitled to legal access to their property over David Lane, the Kelsos do not have a common law way of necessity over Rose, Elder or Engelhardt's properties. This Court retains jurisdiction to determine further supplemental relief to this declaratory decree, to consider an application for fees and costs and to enter such further orders and relief as may be necessary to enforce this Judgment. Ms. Olanoff appealed Judge Rapp's Final Judgment of Declaratory Decree to the Fourth District Court of Appeal. The judgment was affirmed, per curiam, on March 19, 2003. The Fourth District's mandate issued on May 9, 2003. The Town incurred legal expenses as a result of its participation in the litigation before Judge Rapp and the Fourth District. Although he was not at any time a party to the litigation, Respondent, along with Mr. Lucibella, pursuant to the Agreement and Option Agreement, "took control of [the conduct of] litigation for Ms. Olanoff" from March 25, 2002, onward at the trial and appellate level. Respondent did not "think that it was any of the Town's business to know about this option agreement" and he therefore did not "tell about the option agreement" and its contents (consistent with the last sentence of paragraph 5(d) of the agreement).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a public report finding the evidence presented at the public hearing in this case insufficient to clearly and convincingly establish that Respondent "violated Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with an individual engaged in a lawsuit involving the Town" and dismissing the complaint filed against Respondent. DONE AND ENTERED this 11th day of January 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 2005.
The Issue The nature of the controversy is set forth in the Order Finding Probable Cause issued by the Commission on Ethics (the "Commission") on September 16, 2015, which specifically alleged that Respondent, City Attorney, code enforcement special magistrate, or special or backup counsel for the City of North Port, violated sections 112.313(3), 112.313(6), 112.313(7)(a), and 112.313(16), Florida Statutes: [B]y providing counsel and recommendations to the City Commission regarding the adoption of local Ordinance 2014-29 requiring the appointment of a Zoning Hearing Officer and encouraging the City Commission to amend Part II, Chapter 2, Article IX, of the City Code to replace the Code Enforcement Board with a Code Enforcement Special Magistrate and offering himself for consideration for the position of Zoning Hearing Officer as well as Code Enforcement Special Magistrate. The issue is whether Respondent violated these provisions of the Code of Ethics for Public Officers and Employees as alleged in the Order Finding Probable Cause, and, if so, what penalty is appropriate.
Findings Of Fact The City of North Port ("City") is an incorporated municipality, created by the Florida Legislature in 1959, and located in Sarasota County. Its electorate approved a revised charter in 1988. Subsequent amendments to the Charter were approved throughout the years, with the most recent amendment occurring in 2014. Article XIV, concerning the City Attorney, has never been amended. The City's form of government is Commission-Manager. The City Commission consists of five elected City Commissioners. The City Commissioners elect the Mayor, who serves as presiding officer of the City Commission, and who is elected by majority vote of the City Commissioners. The Mayor is "responsible to see that all laws, provisions of [the] Charter and acts of the [City] Commission are faithfully executed; [to] sign on behalf of the City all intergovernmental agreements . . . and any other official documents." The Charter establishes the separation of powers between the executive and legislative branches of the City. The Charter requires the City Commission to appoint the City Manager who serves as the chief administrative officer. The Charter empowers the City Manager to supervise the daily administrative duties and all non-charter employees, make City personnel decisions, represent the City in contract negotiations, sign contracts on behalf of the City, enforce agreements, and perform numerous other duties. The City Commissioners may not interfere with the selection of the personnel of the City Manager's subordinates, nor give orders to City personnel. The Charter establishes the City Manager, City Clerk, and City Attorney. The Charter specifies that the City Clerk and City Attorney are offices that the City Commission cannot abolish. The Charter provides for the office of City Attorney and assigns various duties to the position. As indicated in section 1.03 of the Charter, "reference to any office or officer includes any person authorized by law to perform the duties of such office." The functions of City Attorney include: attending all meetings; advising the City Commission as to its compliance with the Charter and Florida law; being the legal advisor and counselor for all departments; preparing and reviewing contracts, legal and official instruments; and endorsing each legal contract as to form and correctness. The Charter states that "[n]o legal document with [the] Municipality shall take effect until his approval is so endorsed thereon." Respondent provided legal services to the City of North Port from 2001 until August of 2014. From 2001 to 2006, Respondent was a partner in the Bowman, George, Scheb & Robinson law firm which had a contract to provide legal services to the City. The firm was designated the City Attorney for the City. In 2006, simultaneously with the renewal of the Bowman George contract, Respondent moved his practice to the Nelson Hesse law firm, in which he was a partner. From 2006 until August 2012, the Nelson Hesse law firm had a contract to provide legal services to the City. The firm was designated as the City Attorney. In each instance, the City contracted with a law firm, and not a specific individual, to serve as the City Attorney. From 2001 through August 2012, Respondent, as a member of a contracted law firm, performed the duties and responsibilities of the City Attorney as outlined in the City Charter and as provided in the contracts between the City and the Bowman George firm and the Nelson Hesse firm. In 2011, the City Commission began discussing alternatives to the way legal services were provided due to concerns with the City's rising costs for legal fees. In the spring of 2012, the City issued a Request for Proposals (RFP) which sought "proposals from experienced and qualified law firms to provide a full range of municipal legal services serving as the City's legal counsel on a contractual basis." Respondent played no role in developing the RFP or participating in any discussions concerning the RFP because he believed it "would prohibit [his] submission of a proposal to that RFP." Commissioner Linda Yates testified that Respondent said he could not participate in the creation or discussions of the RFP due to ethical issues. Throughout the RFP process, Jonathan R. Lewis served as City Manager. He had been appointed by the City Commission and acts as chief administrative officer. In addition to his various duties, he is responsible for the hiring and firing of City personnel, representing the City in contract negotiations, and signing all contracts, agreements, and applications for the City after approval by the City Commission. Mr. Lewis signed a contract with Suzanne D'Agresta to provide legal advice and counsel to the City Commission during the RFP process since Respondent removed himself from the process as he intended to submit a proposal on behalf of his firm. RFP applicants were advised in writing that "[t]he City Attorney is appointed by the [City] Commission, serves as a Charter officer, and performs duties and responsibilities pursuant to the Charter of the City of North Port section 14.05 and the general law of the State of Florida." Other specialty legal services, such as bond work and pension issues, are outsourced. Minimum qualifications for the position included seven years' experience in Florida municipal law, and licensure by and good standing with The Florida Bar. The Nelson Hesse firm, partnering with the Lewis, Longman & Walker law firm, submitted a response to the RFP. Three other firms submitted responses to the RFP. After an interview process, the Nelson Hesse firm was ranked first by three of five members of the City Commission and the general consensus was that the firm was the most qualified applicant. The City and the Nelson Hesse firm then negotiated the terms of an agreement for legal services that were subsequently presented to the City Commission for approval. On August 15, 2012, the City of North Port approved the Agreement for Legal Services with the Nelson Hesse firm whereby the City employed, engaged, and hired "the Firm to serve as and to perform the duties and responsibilities of City Attorney pursuant to Request for Proposal No. 2012-21." The Agreement stated: The Firm designates and the City accepts Robert K. Robinson as the primary attorney for City legal work. Mr. Robinson may utilize the services of other attorneys and staff in the Firm and [Lewis, Longman and Walker] as he deems appropriate for City legal work. The Agreement, which commenced on September 1, 2012, was for a term of two years and could be renewed for one additional term of one year. The Agreement further provided: The Firm shall serve as the City Attorney who shall act as legal advisor to, and attorney and counselor for, the City and all of its officers in matters relating to their official duties. On September 10, 2012, the City Commission voted four- to-one to approve Nelson Hesse and Respondent to provide legal services to the City Commission. Commissioner Yates was the lone dissenter citing numerous reasons for her "no" vote. Nelson Hesse's compensation was fixed by contract as required by the Charter. A monthly retainer was set at $28,333.33 to cover a maximum of 2,400 hours, and the rate was fixed at $170 for "Hourly Legal Services." Expenses, including travel within the county, were to be billed to the City. The Office of City Attorney was budgeted through "Charter and Executive Services," and in FY 2012 the legal department had a budget of $776,000. Respondent was required to submit his projected budget annually. Respondent had office space for his use at City Hall. Unlike the contract with Ms. D'Agresta, which was signed by City Manager Lewis, Respondent's Agreement was signed by then-City Commission Chair Tom Jones. This indicates that Respondent or his firm was a Charter officer serving under the City Commission, and not a non-charter independent contractor serving under the City Manager on a temporary basis when Respondent and his firm recused themselves from any involvement with the RFP since they intended to submit a proposal. The Agreement reiterated and expanded the duties and powers enumerated in the Charter and provided that Respondent may not assign the Agreement without prior written consent of the City Commission. Respondent, as an individual, believes he was never appointed City Attorney by majority vote of the City Commission nor was he elected to that position. Respondent was also not an employee of the City. His firm, Nelson Hesse, in which he was a partner, served as City Attorney. From the evidence, this appears true even though the Charter refers to the City Attorney as "he or she." Following the November 2012 election of two new commissioners, the City began the process of transitioning from the use of a firm to serve as the City Attorney to the appointment of an individual to serve as the City Attorney. This process, which involved a series of meetings and workshops, included a review of all legal services for the City and eventually led to a decision to retain a consultant to conduct a search for an individual to serve as City Attorney. This process, in turn, led to the appointment of Mark Moriarty as the City Attorney by majority vote of the City Commission. Mr. Moriarty began his employment as the City Attorney on or about September 15, 2014. Well prior to Mr. Moriarty's start as City Attorney, at the June 9, 2014, City Commission meeting, at Vice-Mayor Rhonda DiFranco's request, Respondent, on behalf of his firm, Nelson Hesse, submitted a "Letter of Engagement," that he drafted, to the City Commission for approval. Since the 2012 Agreement with Nelson Hesse was going to expire on August 31, 2014, Respondent sought to provide the City with a "safety net" to ensure it would be covered for legal services until Mr. Moriarty was in place and the City had no need for further services from Nelson Hesse. The Letter of Engagement would allow Respondent, through his firm, to continue to provide advice and representation beginning September 1, 2014, as the backup attorney to the new in-house counsel, Mr. Moriarty. Additionally, the Letter of Engagement specified Respondent would "provide advice and representation to the City on zoning . . . [and as] code enforcement hearing officer." The Letter of Engagement included a higher hourly fee than the previous Agreement with the City ($275 versus $170). The reason given for the higher hourly fee was that Respondent could not ascertain how many hours, if any, his firm would work under the new arrangement and, therefore, could not offer a volume discount for his time. Nothing in the June 9 Engagement Letter required the City to use Nelson Hesse for any future work. The testimony as to Respondent's motive for placing the June 9 letter before the City Commission was disputed by the parties. Respondent was not representing a private individual or entity before the City Commission at the meeting. If he was representing anyone, he believes he was representing the City. He took no action to impede or frustrate the City Commission's move to an appointed City Attorney. If anything, the evidence suggests Respondent assisted the City in its search for an in- house City Attorney by recommending a search firm, and by speaking positively about the transition to the in-house situation. Because Mr. Moriarty was not going to assume his new position until September 15, 2014, the City Manager was authorized to enter into an interim agreement for legal services with Respondent's firm to cover the two-week period between the expiration of the prior Legal Agreement with Nelson Hesse and Mr. Moriarty's start date. Consistent with that new agreement, Respondent attended and provided legal services to the City Commission at its September 8, 2014, meeting. At this meeting, his firm was no longer the City Attorney, but was a contract attorney providing services during the interim period between City Attorneys. The Advocate's take on the post-City Attorney plans of Respondent was quite different. The argument was made that Respondent's June 9 letter was designed to hire Respondent's firm at an increased rate of $275 per hour, plus to make Respondent the Zoning Hearing Officer and Code Enforcement Special Magistrate. The Charter requires reading of a proposed ordinance at two separate public City Commission meetings at least one week apart. On the second and final reading, the proposed ordinance is offered for adoption. If adopted, it becomes local law on its effective date. Respondent, as City Attorney, supervised the drafting of Ordinance 2014-29 to create the position of Zoning Hearing Officer for zoning appeals and variance matters, effective September 1, 2014. The Zoning Hearing Officer was to be hired and could be terminated by the City Commission, which also would supervise the position. Ordinance 2014-29 was presented to the City Commission for first reading at the July 14, 2014, City Commission meeting. Respondent explained the ordinance to the commissioners and legally advised them on the document. The second reading took place at the City Commission's July 28, 2014, meeting. Again, Respondent offered legal advice to the commissioners about the ordinance's effects. Respondent suggested that an appointment needed to be made that night, effective September 1, 2014, the day after his Legal Agreement expired. He offered his services and responded "yes" to a question from City Commissioner Yates regarding whether a decision should be made that night. Respondent provided no other options other than to appoint him immediately. Other options may have been available since it was "the norm" (Respondent's words) for City Manager Lewis to contract with attorneys from a variety of law firms for services without undertaking the competitive solicitation process when specialty legal services were needed. Respondent himself could have called an experienced attorney to handle the pending petition. Instead, Respondent informed the City Commission it was not his responsibility to provide other options to the City Commission. When asked how he would be ready to go with this on September 1, 2014, Respondent said he would "take off [his] city attorney hat" and on September 1 "put on the zoning officer appeals hat." He made clear to the City Commissioners that he was "uniquely qualified" for the position, therefore no others need be considered in his opinion. With no other options before them and having been advised of the urgency of making the appointment, the City Commission appointed Respondent to serve a four-year term by a four-to-one vote (Commissioner Yates being the lone dissenter). Respondent served in the position of Zoning Hearing Officer from September 1 through September 19, 2014. He earned $1,453.50 for 5.5 hours worked ($264.27 per hour). Respondent's 2012 Agreement did not provide he could serve as Zoning Hearing Officer. Respondent drafted the June 9, 2014, Letter of Engagement allowing him to serve as Zoning Hearing Officer. As Zoning Hearing Officer, Respondent served at the pleasure of the City Commission and could be removed with or without cause by a majority of the City Commissioners. Respondent had the power to take testimony under oath and compel attendance of witnesses. He could not engage in any "ex-parte" communications with City Commissioners while serving as Zoning Hearing Officer because he was serving as a neutral arbitrator in a quasi-judicial position adjudicating controversies between two parties: the City and property owners. Respondent could not serve as backup legal advisor to the City from September 1 through 14, 2014, if at the same time he was serving as Zoning Hearing Officer since he was supposed to be in a neutral and, therefore, independent position. Ordinance 2014-30 amended the City Code to abolish the seven-member Code Enforcement Board and create one Code Enforcement Special Magistrate ("Special Magistrate") position, effective October 1, 2014. The Special Magistrate was to be hired by and could be terminated by the City Commission upon a majority vote. That ordinance was presented to the City Commission for first reading on July 28, 2014. Respondent advised the City Commissioners that the ordinance created a special magistrate position, and informed the City Commissioners he would work on the details for the position in September and October 2014, a period of time covered by the June 9 Letter of Engagement, but not the 2012 Legal Services Agreement. Respondent admitted he drafted the June 9 Letter of Engagement so that he could assume the special magistrate position himself. After advising the City Commission on the effects of the ordinance as their attorney, Respondent offered himself for consideration for the not-yet-existent position and was appointed on a four-to-one vote of the City Commissioners to a two-year term beginning October 1, 2014. Like the Zoning Hearing Officer, the Special Magistrate serves as a neutral arbitrator in a quasi-judicial position that adjudicates controversies between two parties: the City and the property owner or alleged violator. Respondent attended ethics classes taught by Chris Anderson, attorney for the Commission on Ethics. Respondent denied he had a conflict of interest because in his view a violation would occur by "the attorney getting up out of his chair and going down in front of the commission and representing John Q. Public or John Q. Developer with regard to matters that are appearing before the city commission. That was not the case with me." Respondent's term as City Attorney ended on August 31, 2014. On August 28, 2014, City Manager Lewis requested authorization from the City Commission to hire Respondent to provide legal services from September 1 through 15, because the new in-house City Attorney would not begin until September 15, 2014. At the next regularly scheduled meeting of the City Commission on September 8, 2014, Ordinance 2014-30 was read a second time and voted for adoption. Respondent attended the meeting as the City Commission's legal advisor. Mayor Blucher introduced him as the "City Attorney" and quickly realized his error and corrected himself to announce Respondent's new title as "attorney for the City." Respondent replied, "Careful." This was apparently the only time Respondent reacted when he was identified as the appointed City Attorney. Although he claims his firm is the entity that contracted with the City to provide legal services, his silence is an admission he considered himself at least to be the de facto City Attorney or appointed public officer. City Commissioner Yates strongly objected every time Respondent's name was presented for the position of interim attorney for the City (for the September 1 through 14 period), Zoning Hearing Officer, or Special Magistrate. In each instance, she asked the City Commission to delay the vote until the new in- house City Attorney came on board so that he could have some input into the decision. She was outvoted four-to-one each time. Municipal governments utilize three typical arrangements for procuring legal services: 1) an in-house attorney who is directly on the government payroll; 2) an attorney in private practice whose firm (or the individual attorney) is retained through a contractual relationship under which the attorney remains employed by his/her firm; and 3) an attorney who practices in a specialized area who is retained on an as-needed basis through contract. Respondent's work for the City fits into the second category of lawyers retained to perform City business. In this matter, Respondent was considered by the City as a Charter Officer holding a public office. According to the RFP, the City sought a City Attorney as contemplated by its Charter when it appointed Respondent for the office. Respondent held himself out as the City Attorney to the Florida Attorney General when requesting legal opinions, to the public on his website, and to the Commission when filing his Form 1, "Statement of Financial Interests" (which also identifies him as an employee of his firm, Nelson Hesse). Respondent has never corrected the suggestion that he is City Attorney. His name appears as the appointed City Attorney on the City's official letterhead, and his picture hangs in City Hall with the other City officers. In City Hall, the name plate below his picture identifies him as the City Attorney and Charter Officer. The official minutes of each City Commission meeting held during his tenure indicate Respondent is the appointed City Attorney. Respondent admitted, when asked at hearing, that the Charter contemplates that a person, not an entity, will be the City Attorney. Respondent denies that he was "appointed" to the position of City Attorney, yet he did not correct Commissioner Blucher when he said during a meeting, "we elected him as a city attorney." City Commissioner Yates, also testifying at the hearing, believes the City Commission approved Respondent as the City Attorney. The City Charter does not require the City Attorney to take an oath of office and, although City Commissioner Yates does not recall whether Respondent did, she testified she expected he would have taken an oath as a matter of course. Respondent's current denial of any violations of chapter 112, Florida Statutes, and insistence that Nelson Hesse is the City Attorney conflicts with previous statements he made. At one point he declared, "Either I am or I am not the City Attorney." Further, when declining to negotiate an assignability clause in his June 9, 2014, Letter of Engagement because, as he explained to the City Commission, "But, the thing you have to understand is, Number 1, is that – is I'm sort of the center of the universe, so wherever I go, that's where it [this contract] goes." Respondent accurately, and appropriately, portrayed himself as the primary attorney for the City, regardless of his firm being named in his 2012 Agreement for Legal Services to the City. Respondent regularly signed official documents as "Robert K. Robinson, City Attorney," not as "Nelson Hesse as City Attorney, by Robert K. Robinson," or some other form of signature where he states his firm is the City Attorney. It is significant that the 2012 Agreement for Legal Services was signed by Tom Jones, then-Chair of the City Commission. The City Manager did not sign the document as he would have if this contract and the legal services rendered thereunder fell into the category of non-charter personnel performing legal (or other) services for the City. Only the City Commission can appropriately sign an agreement or contract designating a Charter Officer such as the City Attorney. Respondent was accountable to the City Commission for work performed under the Agreement. He acknowledged that the Agreement was on a City Commission agenda "at a public hearing where they [the Commissioners] adopted – or they executed the contract."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent, Robert K. Robinson, violated sections 112.313(6) and 112.313(16)(c), Florida Statutes, and ordering him to pay a penalty of $5,000 per violation ($10,000 total). DONE AND ENTERED this 31st day of January, 2017, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2017. COPIES FURNISHED: Elizabeth A. Miller, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399 (eServed) Mark Herron, Esquire Messer Caparello, P.A. Post Office Box 15579 2618 Centennial Place Tallahassee, Florida 32317 (eServed) Brennan Donnelly, Esquire Messer Caparello, P.A. 2618 Centennial Place Tallahassee, Florida 32308 (eServed) Millie Wells Fulford, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) C. Christopher Anderson, III, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
Findings Of Fact At all times relevant to this matter, Joe Pete Cannon was a member of the Town Council of Branford, Suwannee County, Florida, having served in that capacity for approximately twenty years. For approximately seventeen of the twenty years he was president of the five-member council. As president, he chaired the council meetings and assisted the mayor in town administration. Employees of the town were hired and fired by vote of the council; neither the mayor nor council president had that authority alone. Branford, as its letterhead states, is situated "on the banks of the Suwannee River". City limit to city limit, it runs about one-half to three- quarter mile long and has a population of approximately 700. Branford's chief of police, and currently only law enforcement officer is Fred Brittain. Chief Brittain has served in that capacity since 1989; he also served from 1975-1983. Between 1983 and 1989, he served 2 1/2 terms on the town council and resigned from the council in 1989. At various times in the past, Branford has employed three part-time police: Mr. Swafford, Mr. Chancey and, most recently, Roy Harper. Roy Harper was hired by the Town Council in September 1992, at the recommendation and request of Chief Brittain. He had approximately ten years' experience in law enforcement and was working on his two-year degree in criminal justice at the community college. When Harper was hired, Chief Brittain instructed him to conduct general law enforcement patrol work: "Preserve the peace; protect the public; enforce laws." The residential areas were experiencing vandalism, so Harper was told to check suspicious persons. Some burglaries and speeders were also described as problems. No quotas were established for traffic tickets, and no one suggested that traffic tickets should be a good source of revenue for the town. As to speeders, Chief Brittain explained his policy to Harper: up to ten miles per hour (mph) over the speed limit, stop and warn, or don't warn, as long as the person is not driving erratically; if the person is driving erratically or over ten mph over the limit, write a ticket, but use your discretion, as there can always be a good story. No policy was given for voiding tickets and Harper was allowed considerable discretion. Generally, both Chief Brittain and Harper had a policy of voiding tickets they wrote to teens if the parent said they would handle the discipline. As Harper described, he was not trying to cost the parent money, but just wanted to control the problem. After Harper was hired, the number of tickets written in Branford increased. This was as expected, because the more police you have, the more tickets get written. Moreover, both Harper and Chief Brittain were "radar certified" and running radar was a more efficient way to apprehend speeders. In October, November and December 1992, the number of citations were 80, 91 and 100, respectively, up from a high of 71 and an average of 46.5 over the prior twelve months period. Harper wrote tickets, but he also gave a lot of warnings. Around the end of November 1992, Harper had been "running radar" for a week from the ballpark on Governor Street. He had been giving warnings and telling folks that after the week was up he was going to write tickets. He stopped a lot of people and gave this warning. At approximately 7:34 p.m. on November 21, 1992, Howard stopped a young lady heading eastbound on Governor. She was speeding at 42 mph in a 25 mph zone. She said she was a newcomer to the area. When Harper asked where she went to school, she said "Branford". He told her she should be aware of the speed limit, and he issued the citation. Harper talked to Chief Brittain at town hall that evening and asked whether he knew Ms. Kelley, and said he had written her a ticket. Chief Brittain said the Kelleys had lived there all their lives. Jennifer Kelley attends Branford High School. She is a straight-A student, president of the student body, and "Miss BHS". Her father is Ernest Kelley, a life-time resident of Branford. He owns Kelley's Auto Supply, the NAPA store, which has been in the family since 1961, and he runs an investment business. Mr. Kelley found out about the ticket on Sunday night, and the next morning he went to see his insurance man, Tommy Lewis. He was concerned that this was a first offense, that Jennifer was known as a good kid and that maybe the ticket could be mitigated. Kelley insured the whole family on one policy and Kelley's own driving record was not so good. Lewis told him that many times Judge Kennon would waive the points and let them pay a fine. Lewis also told him that 15 mph over the limit was a "major violation", by insurance standards, and that the three options were: a) "local discretion"; b) "the judge's discretion", and c) the guaranteed option of driving school, in lieu of points. Kelley also said he could talk to Cotton State (the insurance company) and tell them this is a good kid. Tommy Lewis, Ernest Kelley and Joe Pete Cannon are golfing buddies; they are three of the twelve or fifteen Branford citizens who are members of the Chiefland County Club. After talking with Tommy Lewis, Ernest Kelley called Joe Pete Cannon and asked him to drop by his office. Cannon did, and Kelley told him about Jennifer's ticket and what Lewis had told him about the options. The driving school option, a sure thing, was not the first choice because of the child's age and the three-time limit over a lifetime. Kelley asked Cannon if he should go talk to "Fred" (Chief Brittain). Cannon said that Fred was over at town hall and offered to go see what local discretion meant. Cannon went over to see Fred, as promised. He asked the chief whether anyone had ever issued a ticket or warning to Jennifer before and he asked whether the ticket could be reduced to a warning in this case. Joe Pete Cannon, according to Chief Brittain, did not use the terms "void the ticket"; Brittain used the terms, and responded that he could not "void" another officer's ticket. Chief Brittain checked to see if the ticket had gone into the court system yet. It had not, and the chief changed the 42 mph to 40 mph and said that was all he could do. Cannon went back to Kelley and told him what happened. Kelley went to the judge, and the ticket was resolved with a $90 fine and waiver of points. If Cannon had not been a political figure, Chief Brittain would not have seen any problem with the approach. The chief had dealt with parents and violators before and he considered voiding a ticket he wrote as part of the discretion an officer should use. The questions, to Chief Brittain's mind, were not improper, except that Cannon was acting on behalf of a friend, instead of himself or a family member. At no time did Chief Brittain suggest to Cannon that Kelley should talk directly to Roy Harper about the ticket. Kelley had a chance to talk with Harper a few days later when Kelley was at the auto store after closing time. Harper stopped at the store for a routine check. The men introduced themselves and had a cordial chat. Kelley said that he had no doubt that his daughter was speeding but he wanted to make sure she was not causing trouble. Kelley told Harper he had gone to the judge and the points would be withheld when the fine was paid. Harper said that was the thing to do. Kelley was not angry with Harper. Over the next month things got stirred up in Branford about ticket writing and the unwritten policies about who got warnings and who didn't. Mike Suggs has lived in the Branford area all his life. On Christmas day 1992, his 16 year old son, Wade, was ticketed by Roy Harper as the boy was heading home out of town. The ticket reflects he was going 48 mph in a 30 mph zone. Mike Suggs talked to Cannon a few days later and said he didn't think it was fair, as he heard others had been stopped, but didn't get a ticket. He did not ask Cannon to throw it out and he did not go to Chief Brittain or Harper to complain. Gary Howard, a member of the town council complained to Chief Brittain until he heard that the youth was doing 18 mph over the speed limit, not 5 mph as his mother had said. Christine Langford, now married to Gary Howard, was clocked on Roy Harper's radar doing 54 mph in a 30 mph zone, going north on state road 129. She got a ticket and her husband felt she deserved it. Shane Harris was stopped and ticketed by Roy Harper on January 2, 1993, for doing 48 mph in a 30 mph zone. The ticket was voided when Shane's dad came and talked to Harper. The boy was in the military service; his dad is a law enforcement officer in Lafayette County. Bobby Avery was stopped by Roy Harper in December 1992 for speeding on the Lake City highway in his pick-up truck. Avery had been drinking and was a little belligerent. When he identified himself as an inspection officer from DOT, Harper called Chief Brittain to come identify him. Chief Brittain went out to the scene and did verify who Avery was, but did not mention that he, himself, had stopped Avery before. Avery's attitude was sarcastic and there was alcohol on his breath, but he was not drunk or impaired. Roy Harper let him go with a warning, primarily because he did not want the bad attitude to cause him to write the ticket. Harper found out later that Avery had been stopped before by Chief Brittain. Ms. Mullins was another speeder who just got a warning from Roy Harper. Her speed was just over the limit and she told him she "never speeds in Branford", but was on her way to the doctor's office. He told her to go and call him from the doctor's office and he would check with Fred Brittain, but if she did not call, he would send her the ticket in the mail. She called, and did not get the ticket, because Chief Brittain confirmed that he never had a problem with her. The Holzclaw boy was another case involving Roy Harper. There had been some vandalism or other criminal activity in one of the neighborhoods. Harper saw the boy in a vehicle around 10:00 or 10:30 p.m. He watched him and followed him out of town and across the Suwannee River bridge where he stopped him. After questioning the boy about some guns and equipment he had in the truck for hog-hunting, Harper let him go. The boy's father felt he had been harassed and complained to Joe Pete Cannon and to the sheriff. Nell's Restaurant in downtown Branford is the hub of social intercourse in the community. Folks gather there at lunch and on Saturdays and share news and views. At Nell's, the Branford police department was a hot issue. Richard Marquette, fourteen years in Branford, manager of a gas company and former vice-president of the Chamber of Commerce, heard that Chief Brittain was told he could have as many deputies as he wanted, as long as they wrote enough tickets to pay their salaries. He didn't know whether this was true and he went to see Joe Pete Cannon about it. He heard that Harper was hiding with his radar up at the school by the football field. He heard customers say they would rather go to High Springs because Branford was a speed trap. Tommy Lewis, in his usual course of business, gets calls from people wanting to know what a ticket will do to their insurance. He got a lot more calls when Roy Harper was a Branford police officer. He, and others, including M.O. Clark, another insurance agent in Branford, were concerned how negative publicity would affect business from people outside the town. Cannon, at some point after the Jennifer Kelley incident, talked to Chief Brittain about the complaints he was getting and the rumors he was hearing about some people getting warnings and others getting tickets. The chief assured him that Harper was doing his job and the police were being fair. By early January, and after the Holtzclaw complaint, Joe Pete Cannon was exasperated and approached the chief one last time: ...But anyway, I came down on Monday morning, January 4, and I asked Chief Brittan about the ticket, you know, as far as the warning. I said , "One person---" Because I didn't know who it was. The man said he would rather not tell me, you know, as far as--- I said, "What's this about one person, you know, as far as not one warning, but got two warnings and still hadn't got a ticket?" So he lied to me. He said, "That ain't happened." And I told him, I said, "Fred, don't you tell me a lie." Then he gave me a name. He gave me the name of who it was. So I told him, I said, "Fred, I have come to you---" That would be as far as about the third or so time. I said, "I've talked with you, you know, as far as these different---" And I said, "I'm fed up with it." I said, "On these complaints.", and I said, "I'm telling you right now, where it won't be no surprise or no secret. At the next council meeting---" Which would be eight days off the 12th of January. "---I'm going to recommend to the Council and tell them, if I can get a move and a second, I will vote with them to terminate our part time policeman's employment." I never talked with Fred Brittan, Chief Brittan, again. And I told him, I said, "I don't want it to be no surprise or no secret." That's what I told him then. I walked out and never communicated with Chief Brittan again until I came into that Council meeting there. And did just exactly what I said I was going to do. I brought it up, explained it, and so that's where we stand now. (Advocate's Exhibit #12, deposition of Joe Pete Cannon, pp 41-42) By the time of the council meeting on January 12th, the news of Harper's employment jeopardy was all over town. Chief Brittain felt Harper was doing his job, and after the conversation with Cannon on the 4th, the chief went around talking to the town council members and others. Cannon told Ernest Kelley and Tommy Lewis on the golf course, and when Kelley asked if it was a secret, Cannon replied that it wasn't, as he had already told Chief Brittain. Harper's employment contract with the Town of Branford is a form contract used for other part-time police. It provides that the employee serves at the pleasure of the town council and is under the supervision of the Chief of Police. It also provides: The policeman is further to be answerable to the Town Council for the conduct of duties of such office and shall be subject to suspension or removal by the Town Council, for cause, at will or at pleasure of the Town Council." (Advocate's exhibit #8) The Harper issue was not specifically on the agenda for the January 12th meeting. The agenda is generally prepared on the Friday before the Tuesday meeting. Cannon did not have the clerk put it on the agenda because the "police report" was already on the agenda, as it always is. In fact, when Harper was hired by the council, it was in the "police report" portion of the agenda. The minutes of the meeting accurately and succinctly describe the vote of the council: POLICE REPORT Chief Brittain gave the police report at this time. Council President Joe Cannon brought to the attention of the Council that he has had numerous complaints about the part-time policeman. Cannon said that he had talked with the Police Chief about the high number of speeding tickets and complaints. He felt that the problem had not been resolved and that we did not need the part-time policeman any longer. MOTION MADE BY GARY HOWARD TO TERMINATE THE EMPLOYMENT OF ROY HARPER, PART-TIME POLICEMAN. SECONDED BY ROY BAGLEY. VOTE: IN FAVOR: HOWARD, BAGLEY, AND CANNON. AGAINST: MURRAY AND PURCELL. MOTION CARRIED BY MAJORITY. A couple of local businessmen were present to state they felt the high number of speeding tickets would run-off business. (Advocate's exhibit #7) Roy Harper and some others feel that the vote taken at the meeting was a foregone conclusion and that Joe Pete Cannon had already discussed the issue with other council members. Harper's wife, Linda Harper, was doing an internship in Branford for her criminal justice degree program. She was in Chief Brittain's office in December 1992, while he was on vacation, as she was working on something to do with paperwork procedures, making data entries and reorganizing the evidence room. She saw Joe Pete Cannon and Gary Howard alone in Town Clerk Donna Owen's office with the door closed. She did not overhear any of the conversation and has never personally witnessed any two elected officials discussing the matter. Chief Brittain believes that Cannon must have discussed Harper with other council members before the meeting because he remembers that at some point prior to the meeting, Cannon told him he had the votes to fire Harper. Cannon denies telling the chief he had the votes, but rather says he only said that if he had the votes he was going to fire Harper. Not even Chief Brittain's version of the conversation would support a finding that Cannon had spoken with his fellow council members about their votes. No one testified that "out of the Sunshine" discussions actually took place between Cannon and any other council members. No one actually overheard such discussions. There were, of course, very vigorous discussions of the issue in the town - discussions inspired by the complaints being made, by local businessmen worried that Branford would become another "Ludowici, Georgia", and by Chief Brittain's own advocacy on Harper's behalf. Some days after the meeting, back at Nell's Restaurant, Joe Pete Cannon told L. T. Chesson, Chief Brittain's father-in-law, that Fred let him down, that he wasn't happy with the way Fred was acting and that he (Fred) could be brought before the town council. Cannon was upset with Chief Brittain but not because he didn't take care of Jennifer Kelley's ticket. Cannon felt he presented some town concerns to the chief and Brittain was not responsive. These were some good faith concerns that the unwritten policies of the Branford police were not being even- handedly applied. Avery got two warnings; a young woman who was a model teen and who, understandably, was described as mortified by the entire turn of events and notoriety, got no warning. In summary, the abundant evidence in this proceeding fails to support a finding that Joe Pete Cannon misused his position with regard to the Jennifer Kelley ticket or the termination of Roy Harper. Rather, in response to several complaints, he approached first the police chief, then his fellow elected officials, in the appropriate forum, on an issue which he perceived to be a threat to the small town's harmony and weal.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics issue its final order and public report finding no violation of section 112.313(6), F.S. by Joe Pete Cannon, and dismissing the complaint. DONE AND RECOMMENDED this 6th day of July, 1994, 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 6th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3627EC The following constitute specific rulings, pursuant to section 120.59(2), F.S., on the findings of fact proposed by each party. The Advocate's Proposed Findings 1.-2. Adopted in paragraph 1. 3.-4. Adopted in paragraph 9. 5. Adopted in paragraph 12. 6.-7. Adopted in substance in paragraph 12. Rejected as unnecessary. Adopted in substance in paragraph 13. Adopted in substance in paragraph 1. Adopted in substance in paragraph 14. Adopted in part in paragraph 17; otherwise rejected as unnecessary. Adopted in part in paragraph 15; otherwise rejected as contrary to the weight of evidence. Adopted in part in paragraph 18; otherwise rejected as contrary to the weight of evidence. Adopted in part in paragraph 16; otherwise rejected as contrary to the weight of evidence. Adopted in paragraph 6. Adopted in paragraph 25. Adopted in paragraphs 20 and 21. Adopted in paragraph 23. Adopted in part in paragraphs 28 and 29; otherwise rejected as unsupported by the weight of evidence. Adopted in part in paragraph 31; otherwise rejected as unnecessary. Rejected as unnecessary. Adopted in part in paragraph 34; otherwise rejected as unsupported by the evidence. Adopted in part in paragraph 29; otherwise rejected as unsupported by the weight of evidence. Cannon's version of the conversation is adopted as credible and consistent. Adopted in part in paragraph 33; otherwise rejected as unnecessary. Adopted in part in paragraph 36; otherwise rejected as unnecessary or contrary to the weight of evidence. Adopted in part in paragraph 33; otherwise rejected as unnecessary. Adopted in part in paragraph 37; otherwise rejected as unsupported by the weight of evidence. Rejected as utterly without credible supporting evidence. 30.-31. Rejected as contrary to the greater weight of evidence. Respondent's Proposed Findings A.-B. Adopted in paragraph 1. Adopted in paragraph 9. Adopted in part in paragraph 34; otherwise rejected as unnecessary. Adopted in part in paragraph 35; otherwise rejected as unnecessary. F.-P. These paragraphs are substantially argument, comment on the evidence and some legal authority. The findings of fact therein are substantially adopted. COPIES FURNISHED: Stuart F. Wilson-Patton, Esquire Advocate for the Florida Commission on Ethics Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 David A. Glant, Esquire Post Office Box 2519 High Springs, Florida 32643-2519 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
The Issue The issues for determination are: Whether Respondent violated section 112.3135, Florida Statutes,1/ by voting on the appointment and/or advocating for the appointment of her relative to a position within her agency and/or her agency voting to appoint and/or advance her relative and, if so, what is the appropriate penalty? Whether Respondent violated section 112.313(6), Florida Statutes, by using her position to appoint her relative to the position of City of Midway Mayor Pro Tem and, if so, what is the appropriate penalty? Whether Respondent violated section 112.313(6), Florida Statutes, by using a City of Midway-owned vehicle and/or City of Midway-issued gasoline credit card for personal use and, if so, what is the appropriate penalty? Whether Respondent violated section 112.3148(8), Florida Statutes, by failing to report the gift of the personal use of the City of Midway-owned vehicle and/or the City of Midway-issued gasoline credit card and, if so, what is the appropriate penalty?
Findings Of Fact At all material times, Respondent served as a member of the Midway City Council (City Council). She was initially appointed to the City Council in 2000 and served until 2003. She was subsequently elected to the City Council in 2015 and served until May of 2019. Respondent became the Mayor of the City of Midway in May of 2017. As a member and/or mayor of the City Council, Respondent is subject to article II, section 8, Florida Constitution, and the requirements of part III, chapter 112, Florida Statutes, Code of Ethics. In January 2018, Respondent attended and received ethics training from the Florida League of Cities. That training included information on and examples of nepotism, misuse of position, and the receipt and disclosure of gifts. It also included information about the Commission issuing advisory opinions and how to contact the Commission. Nepotism Allegation The form of government the City of Midway (the City) provided under its Charter is the "Council-Manager Government,” under which all powers of the City are vested in an elected council. The City Council consists of five citizens who are residents of the City and electors eligible to vote in the City elections. From its members, the City Council elects a Mayor and Mayor Pro-Tem. The election of the Mayor and Mayor Pro-Tem occurs at the first regular council meeting after the City election. According to the Midway City Charter, the Mayor presides at all meetings of the City Council and performs other duties consistent with the office as imposed or designated by the City Council. The Mayor has a voice and vote in the proceedings of the City Council. The Mayor is referred to as Mayor-Councilmember in the execution of any legal instruments or writing or when functioning to meet other duties arising from the general laws of Florida or from the City Charter. The Mayor is recognized as the head of City government for all ceremonial purposes, for service of process, execution of contracts, deeds and other documents. The Mayor may take command of the police and govern the City by proclamation during the times of grave public danger or emergency and the Mayor has the power during such times to appoint additional temporary officers and patrolmen. The power and duties of the Mayor-Councilmember are such as they are conferred upon him/her by the Midway City Charter and no other. The Midway City Charter provides that the Mayor shall: “(a) See that all laws, provisions of this charter, and acts of the council, subject to his/her direction and supervision are faithfully executed; (b) Submit the annual budget message; (c) Summon the appropriate law enforcement officers to suppress civil disturbances and to keep law and other during times of emergency; (d) Make such other reports as the council may require concerning the operations of city departments, offices, and agencies subject to his/her direction in time of emergency; (e) Attend, preside, and vote at all council meetings; (f) Sign contracts on behalf of the city pursuant to the provisions of applicable ordinances; (g) Be recognized as the city official designated to represent the city in all agreements with other governmental entities or certifications to other governmental entities as approved by the vote of the city council; (h) Annually prepare a state of the city message, set forth the agenda for all meetings of the council, name committees of the council, make recommendations of members for city boards to the city council; (i) Perform such other duties as specified in this charter or may be required by council.” The population of the City is less than 4,000 residents. The City Council has land use and/or zoning responsibilities. In April 2016, there was a vacancy on the City Council caused by a Councilmember departing prior to the end of that Councilmember’s term. Respondent’s first cousin, Sam Stevens, wanted to be appointed to the City Council to fill the vacant seat. Prior to any action on the matter, Respondent telephoned Commission legal staff member, Grayden Schafer, Esquire, and inquired whether she would be in violation of the anti-nepotism statute if the Council appointed her first cousin to serve the unexpired remainder of a departing Councilmember's term. Following his telephone conversation with Respondent, on April 21, 2016, Attorney Schafer sent an e-mail to Respondent at rangewanda@yahoo.com, summarizing Respondent’s inquiry and the advice he provided. The last page of that e-mail (Schafer’s E-mail) states: a public official can be held in violation of the anti-nepotism provision if the appointment is made by the collegial body on which she serves, even if she did not participate in the appointment. Given the foregoing, it appears that you can be held in violation of the anti-nepotism statute not only if you directly participate or advocate for your first cousin's appointment but also if the City Council decides on its own to appoint him, regardless of whether you vote or participate. According to Respondent, she did not receive the Schafer E-mail in 2016 and did not see it until after the filing of the complaints initiating this case against Respondent. Regardless of the timing of Respondent’s receipt of Schafer’s E-mail, the evidence is persuasive that the topic was discussed between Respondent and Attorney Schafer, and that, as a result of her telephone conversation with Attorney Schafer in April 2016, Respondent understood that, because of her kinship with Sam Stevens, she could not vote to appoint or advocate to appoint Sam Stevens to the City Council. She also was aware that, even if she recused herself from voting or participating in the discussion to appoint Sam Stevens to the City Council, if the City Council voted to appoint her first cousin to the vacant seat, she would be in violation of the anti-nepotism provision. After her conversation with Attorney Schafer, in April 2016, Respondent advised the City Council of her research and that she had contacted the Commission to inquire as to whether she could vote to appoint her cousin to the City Council. She explained that she could not and would have to resign if he was appointed, even if she did not participate in the vote. Sam Stevens was not appointed to fill the vacant City Council seat in 2016. The next year, Sam Stevens was elected to the City Council during the April 2017 municipal election. He was not elected or appointed by the City Council, but rather was elected by City citizens voting in the election. The following month, at its May 4, 2017, meeting, the City Council considered the issue of electing a Mayor and Mayor Pro-Tem as provided by the City Charter. At that meeting, Councilman Colston asked if it was legal for relatives to vote for each other. The minutes of the City Council for that date indicate that “Interim City Attorney Thomas explained he had heard the rumor and did research and it is legal.” Contrary to the City Council minutes, in his deposition testimony, City Attorney Thomas denied that he gave that advice, but rather explained that he opined that Respondent and Councilman Sam Stevens could serve together on the City Council, but could not promote or advocate for one another. Despite his denial, during his interview with the Commission’s investigator, City Attorney Thomas “recalled researching the matter and advising Respondent that it was not a voting conflict for her to vote to appoint her cousin to serve as mayor pro tem." Considering the conflicting evidence, it is found that the preponderance demonstrates that the City Attorney advised that it was not a voting conflict for relatives to vote for each other for Mayor and Mayor Pro-Tem. Respondent did not reveal her 2016 conversation with Attorney Schafer to the City Council on May 4, 2017, nor did she provide a copy of Schafer’s E-mail dated April 21, 2016, to either the City Council or the City Attorney prior to the City Council’s votes for Mayor and Mayor Pro-Tem. However, at the May 4, 2017, City Council meeting, a citizen confronted Respondent with a copy of Schafer’s E-mail, reading portions of Schafer’s E-mail aloud. Respondent testified that she did not acknowledge an ethical dilemma regarding Attorney Schafer’s opinion because she believed it addressed appointment as opposed to election, and her cousin had been elected a year later, not appointed. Schafer’s E-mail does not address the situation in which both Respondent and her first cousin are elected members of the City Council and whether Respondent can vote to elect him as the Mayor Pro-Tem in that context. At that meeting, Respondent nominated herself to serve as Mayor. Her nomination was seconded by Councilman Smith. Respondent was elected as Mayor when the City Council voted three to two for Respondent to serve as Mayor with Councilman Smith, Councilman Sam Stevens, and Respondent voting “yes,” and Councilman Ronald Colston and Councilwoman Carolyn Francis voting “no.” Respondent, as the Mayor, received an $800 stipend, which is $100 more than the other councilmembers. At that same May 4, 2016, meeting, Councilman Colston nominated Councilwoman Francis to serve as Mayor Pro-Tem. That nomination failed two to three, with Respondent, Councilman Smith, and Councilman Stevens voting “no.” Councilman Smith then nominated Councilman Stevens to serve as Mayor Pro-Tem. The City Council voted three to two for Councilman Stevens to serve as Mayor Pro-Tem with Respondent, Councilman Stevens, and Councilman Smith voting “yes,” and Councilman Ronald Colston and Councilwoman Carolyn Francis voting “no.” According to the City Charter, the Mayor Pro-Tem: “shall preside over the meetings of the council during the absence of the mayor- councilmember, and in general in the absence or the incapacity of the mayor- councilmember, he/she shall do [sic] perform those acts and things provided in this Chapter to be done by the mayor- councilmember. Nothing contained herein shall be construed as to preclude the member succeeding himself or herself as Mayor- Council member.” The City provides no additional compensation for a Councilmember serving as Mayor Pro-Tem. Vehicle Use and Gift Disclosure The City has two vehicles. One is a white Ford Taurus that has air conditioning (Vehicle). The other is a white Ford Taurus with a red stripe that does not have air conditioning. Respondent was given a 2002 MPV Mazda Van by her daughter, Temika Smith, on Mother’s Day in 2016. While serving as Mayor, Respondent had use of the Vehicle for personal use. Respondent began using the Vehicle in September or October 2017 following a hurricane and had access to the Vehicle until she stopped using it in May of 2019. During this time, the Vehicle was generally parked on property adjacent to Respondent’s residence. While Respondent had a set of keys to the Vehicle, there was another set of keys at the City Hall. In addition to Respondent’s access, other city employees or city council members could use the Vehicle. Former City Manager Steele used the Vehicle on occasion during the time that Respondent had access to the Vehicle. When former City Manager Steele wanted to use the Vehicle, she would pick it up from Respondent’s residence and return it to City Hall. Respondent used the Vehicle for a variety of City- related purposes. She used it to travel to Florida League of Cities’ conferences. In addition, she used the Vehicle to attend events in Midway, in Gadsden County, and in Tallahassee, including meetings with the City’s lobbyist and members of the Florida Legislature, as part of her duties and responsibilities as Mayor. Respondent was also observed driving the Vehicle to meetings at the City Hall. Respondent’s personal use of the Vehicle included, but was not limited to, traveling roundtrip between Midway and Tallahassee. She may have had her daughter in the Vehicle on two or three occasions, and on occasion, drove the Vehicle to her daughter’s house in Tallahassee. On one of the occasions when Respondent drove the Vehicle to her daughter’s house in Tallahassee, which occurred on March 15, 2018, Respondent had a run-in with a Midway resident who had followed Respondent to her daughter’s house. The Midway Resident took pictures of the Vehicle at Respondent’s daughter’s house and also the Mazda MPV van, which was without a license plate. On that occasion, Respondent had gone to check on the house because her daughter was out of town. At the final hearing, Respondent admitted that there was a time when the Mazda MPV was in the shop a lot, and, since she had access to the Vehicle, she turned in the Mazda’s tag to save on insurance payments. On another occasion in 2018, Respondent was stopped by a Gadsden County Deputy Sheriff in Midway after midnight for having a tag light out and the incorrect tag on the Vehicle. Respondent had been returning from Tallahassee. No citation was issued with respect to that stop. Other examples presented at the hearing illustrating Respondent’s use of the Vehicle included her transporting a child from Midway to Florida High in Tallahassee, taking a Midway resident from Midway to Tallahassee to drop him at his place of employment, and taking an individual to Liberty County to retrieve that person’s vehicle left when evacuating because of a hurricane. While providing such accommodations is not listed within Respondent’s responsibilities as Mayor or Councilmember, arguably, they served a public purpose. While Respondent had access and use of the Vehicle, the City did not have a vehicle-use policy. The evidence indicates that former City manager Ford also used a City-owned vehicle for personal use. Former City Manager Steele could not recall if any other city employees or city council members had used the Vehicle. Respondent testified that employees of the City’s public works department might also have used the Vehicle. City Councilman Ron Colston testified that he never used the Vehicle. At the May 3, 2018, Midway City Council meeting, Councilman Colston publicly requested that Respondent stop driving the Vehicle, stating that citizens had approached him with concerns about Respondent driving the Vehicle. Minutes of that City Council meeting indicate that Councilman Coston commented that he had received some calls from citizens concerned with Respondent driving the City-owned vehicle and suggested that she should park the Vehicle because of the number of complaints and that it is a liability. In response to that comment, City Attorney Thomas suggested that the City Council come up with some policy and procedures on the use of City vehicles. Respondent did not stop driving the Vehicle at the time of Councilman Colston’s request. By the end of October 2018, the Vehicle needed a tune-up and to have its brakes checked. In October 2018, Respondent started using a rental car when she got a job with the Federal Emergency Management Agency (FEMA) for debris monitoring. Respondent was not reimbursed by FEMA for the rental. In January 2019, Respondent purchased a new vehicle, a 2019 Mitsubishi G4 Mirage. At the time of the final hearing in this case, the City was in the process of developing a policy regarding the use of City vehicles and City Fuel Cards. Respondent did not report the use of the vehicle on her income taxes and did not file a gift disclosure to report her personal use of the City-owned vehicle as a gift. Fuel Card Use and Gift Disclosure Respondent used a City-issued Pilot Travel Center credit card for gasoline for the Vehicle. City-issued Pilot Travel Center credit card #007 (City Fuel Card) was assigned to the Vehicle. The City Fuel Card was the only one numbered #007 and it remained in the Vehicle. While some of the fuel purchases charged to the City Fuel Card were related to City business, Respondent acknowledged that fuel was also purchased using the City Fuel Card during her personal use of the Vehicle. Records of City Fuel Card #007 from November of 2017 through December of 2018 show the following charges: November 2017: -November 1, 2017– 623 Quincy FL- $33.67 -November 5, 2017- 425 Midway FL- $20.71 -November 5, 2017- 4556 Wildwood FL- $20.00 -November 8, 2017- 4556 Wildwood FL- $18.30 -November 9, 2017- 623 Quincy FL- $24.72 -November 13, 2017- 623 Quincy FL- $21.77 -November 13, 2017- 623 Quincy FL- $35.42 -November 20, 2017- 623 Quincy FL- $42.68 -November 20, 2017- 623 Quincy FL- $30.78 -November 27, 2017- 623 Quincy FL- $32.00 Respondent traveled on City business to and from Orlando, Florida, from November 5 through November 8, 2017. As to the multiple charges on November 13, 2017, and November 20, 2017, Respondent explained that she traveled on City business because “we were giving out turkeys during that time.” December 2017: -December 2, 2017– 623 Quincy FL- $30.91 -December 12, 2017– 623 Quincy FL- $34.06 -December 15, 2017– 425 Midway FL- $30.27 -December 22, 2017– 425 Midway FL- $27.03 January 2018: -January 9, 2018– 425 Midway FL- $33.82 -January 17, 2018– 425 Midway FL- $22.03 -January 18, 2018- 4556 Wildwood FL- $18.00 -January 21, 2018- 4556 Wildwood FL- $8.20 -January 22, 2018- 425 Midway FL- $15.50 -January 23, 2018- 425 Midway FL- $8.57 -January 24, 2018- 425 Midway FL- $10.01 -January 26, 2018- 425 Midway FL- $24.00 Respondent traveled on City business to and from Orlando, Florida, during the period from January 18 through 22, 2018. February 2018: -February 2, 2018– 425 Midway FL- $34.26 -February 15, 2018– 425 Midway FL- $32.00 -February 22, 2018– 425 Midway FL- $30.01 March 2018: -March 14, 2018- 425 Midway FL - $31.00 -March 28, 2018– 425 Midway FL - $32.07 April 2018: -April 7, 2018– 425 Midway FL - $25.00 -April 17, 2018– 425 Midway FL - $35.44 -April 28, 2018– 425 Midway FL - $7.52 66. May 2018: -May 14, 2018– 425 Midway FL - $37.01 -May 20, 2018– 425 Midway FL - $29.02 -May 26, 2018– 425 Midway FL - $41.00 67. June 2018: -June 1, 2018– 4556 Wildwood FL- $25.03 -June 2, 2018– 4556 Wildwood FL- $18.02 -June 4, 2018– 425 Midway FL- $20.00 -June 9, 2018– 425 Midway FL- $31.00 -June 15, 2018– 425 Midway FL- $28.04 -June 29, 2018– 425 Midway FL- $33.00 Respondent traveled on City business to and from Orlando, Florida during the period from May 31, 2018, through June 2, 2018. 68. July 2018: -July 18, 2018- 425 Midway FL- $35.06 August 2018: -August 3, 2018– 425 Midway FL- $21.08 -August 14, 2018- 622 St. Lucie FL- $20.01 -August 14, 2018- 091 Jacksonville- $24.00 -August 19, 2018- 624 Dade City FL- $27.02 -August 20, 2018- 425 Midway FL- $19.33 -August 24, 2018- 425 Midway FL- $33.01 Respondent traveled on City business to and from Hollywood, Florida during the period from August 14 through 18, 2018. September 2018: -September 4, 2018– 425 Midway FL- $37.00 -September 13, 2018– 425 Midway FL- $35.50 -September 29, 2018– 425 Midway FL- $36.01 October 2018: -October 10, 2018– 623 Quincy FL- $39.07 November 2018: -November 21, 2018– 623 Quincy FL- $33.07 December 2018: -December 5, 2018– 623 Quincy FL- $18.80 In addition to the fact that some of Respondent’s use of the City Fuel Card to put fuel in the Vehicle included her personal use of the Vehicle, Respondent used the City Fuel Card to purchase gasoline for the Vehicle when she was using the Vehicle for travel on City business, including travel to Florida League of Cities’ conferences in November of 2017, as well as while traveling on City business in and around Midway and Gadsden County, and to and from Tallahassee. Respondent also used the City Fuel Card to pay for gasoline while traveling on City business to attend Florida League of Cities’ conferences in a rental vehicle. These conferences occurred January 18 through 22, 2018; May 31 through June 2, 2018; and August 14 through 18, 2018. There was no evidence presented that Respondent used the City Fuel Card to purchase anything other than fuel for the Vehicle or fuel for a rental car while on business for the City. As the City Fuel Card was kept in the Vehicle, other City Council members or City employees would have had access to the City Fuel Card when they were driving the Vehicle. Respondent did not file a gift disclosure to report her use of the City Fuel Card to put gasoline in the Vehicle on those occasions when she used the Vehicle for personal use.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a Final Order and Public Report be entered finding that Respondent, Wanda Range, violated section 112.3135, Florida Statutes, and recommending the imposition of a nominal civil penalty of $1.00 for that violation, and further finding that Respondent Wanda Range did not violate sections 112.313(6), or 112.3148(8), Florida Statutes, as alleged in the Order Finding Probable Cause. DONE AND ENTERED this 8th day of November, 2019, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2019.
Findings Of Fact Respondent, Richard C. Lockman, Jr., is, and at all times relevant to this proceeding, has been a certified law enforcement officer, having been issued certificate number 02- 15677 by the Criminal Justice Standards and Training Commission. Richard Lockman was employed by the Town of Windermere Police Department from March 18, 1980 through May 22, 1987. During the relevant periods of 1986 and 1987, his rank was sergeant. His immediate supervisor was the Windermere police chief, Jeffrey C. Villella. From summer 1986 until April 1987, Chief Villella was building a personal residence and was absent from the police department for several days each week, using accrued leave time. In the chief's absence, being next in rank, Sgt. Lockman was generally in charge of the daily affairs of the department. Sgt. Lockman began hearing and became aware of irregularities in the chief's administrative practices. A town council member, Pete Wages, approached Sgt. Lockman and asked about Chief Villella's use of a police vehicle for personal business, and later asked about discrepancies in the chief's time sheets. On another occasion, Councilman Wages asked him about the chief's operation of a private security guard business while in his police department office. Each time Sgt. Lockman provided information that tended to support the councilman's suspicions. From other sources, Lockman heard stories about the possibility that the son of the contractor who was building Chief Villella's house was involved in drugs. Lockman was concerned that the chief did not aggressively pursue drug investigations, but rather was more interested in burglaries in the Town of Windermere. Someone reported that tangible evidence was not being properly handled at the police department. John P. Luff was part-time city manager for the Town of Windermere from January through June 1987. He and Forrest Danson, a council member who was designated "police commissioner", were responsible for reviewing the activities of the police department. John Luff was aware of friction between Chief Villella and Sgt. Lockman but ascribed it to a personality conflict. He considered both men to be honest. After the allegations came to his attention, John Luff discussed them with Chief Villella and the chief denied them. When Luff reviewed the police time sheets he had no basis to question them. Luff also believed that Villella's use of his vehicle was proper. At some point Villella told him that Wages and Lockman were out to get the chief's job. During the controversy, one day in early 1987, Sgt. Lockman was arriving for duty when Chief Villella apprehended him from the vicinity of Councilman Wages' office. The chief ordered him to his office in what Lockman considered was an uncharacteristically agitated manner. Lockman was concerned about his job as he knew that he had been furnishing information to Councilman Wages. Lockman also felt that in his agitation, Chief Villella might threaten him or insist that he stop investigating the chief's activities. Without Chief Villella's permission, and using a small concealed tape recorder, Lockman taped a portion of their conversation in the chief's office that day. The session never produced the anticipated threats nor any "smoking gun". Rather Chief Villella was upset that Sgt. Lockman had failed to inform him of an important meeting, saying "Once again you have discredited me and this department." Sgt. Lockman found the notice of the meeting under a pile of papers on the chief's desk, and the meeting ended. Sgt. Lockman had taped a counseling session on another occasion, but with the chief's permission. The above incident is the first and only time he operated his microrecorder surreptitiously in a meeting with the chief. On or about May 1, 1987, Sgt. Lockman was summoned again to Chief Villella's office and was stripped of his authority and his vehicle. Lockman surmised this was the result of the chief's learning the full details of his disclosures to Councilman Wages. The next day, Lockman met with John Luff and with Councilman Danson at town hall. He was upset at having been demoted. He played the tape for the two men, saying that he wanted to show them what he had to do to protect himself. He did not state that he had been conducting a criminal investigation, but he assured Councilman Danson that the tape was legal because he (Lockman) had been a party to the taped conversation. Lockman asked that a full independent investigation be done of the police department, but failed to provide specific details to John Luff's satisfaction. Lockman denied that he was out to "get" Jeff Villella. No independent investigation was conducted. Against the recommendation of the police complaint review board constituted under the policeman's bill of rights, the town council terminated Sgt. Lockman the end of May, 1987. After the termination, Jeff Villella found out about the taped conversation from Forrest Danson and John Luff. He was able to identify the occasion of the meeting from the quoted phrase, "Once again you have discredited me and the department". Upon advice, Villella reported the incident to the Orange County Sheriff's department and to the Florida Department of Law Enforcement. Criminal charges were brought against Richard Lockman, but were dismissed in a pre-trial intervention procedure. Richard Lockman sued the town and various individuals in federal court. The jury found that he had been wrongfully discharged as a "whistle blower", and awarded damages and reinstatement pursuant to Section 112.3187(9), F.S. The case is on appeal. According to one witness, the upheaval surrounding Windermere's police department was typical small town politics. There was no evidence of actual criminal wrongdoing by Chief Villella, although there was some evidence of casual or sloppy administrative practices. Richard Lockman exercised poor professional judgement by allowing himself to become part of the factionalism and by not reporting his concerns to an outside authority such as the Florida Department of Law Enforcement. He undertook his own private investigation. The circumstances surrounding Richard Lockman's intercept of Chief Villella's conversation reflect both fear for his job and zeal for his investigation. Those circumstances do not clearly establish the violation alleged in the administrative complaint.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that the Criminal Justice Standards and Training Commission enter a Final Order dismissing the complaint against Richard C. Lockman, Jr. DONE and ENTERED this 31st day of May, 1990, in Tallahassee, 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 31st day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-4539 The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner Adopted in paragraph #1. Adopted in paragraph #2. Adopted in substance in paragraph #8 and 4. Adopted in paragraph #4. Adopted in paragraph #8. Respondent Adopted in paragraph #1. Adopted in paragraphs #2 and 3. Adopted in substance in paragraph #3. Adopted in paragraph #4. and 5. Rejected as irrelevant. and 8. Adopted in part in paragraph #8. The record does not establish that and Villella had just met with the council member. Adopted in paragraph #12. Adopted in paragraph #13. Adopted in paragraph #16. Rejected as irrelevant and unsupported by the record in this proceeding. Adopted in paragraph #15. Adopted in substance in paragraph #8. Adopted in paragraph #10. through 19. Rejected as unnecessary. COPIES FURNISHED: Elsa Lopez Whitehurst, Esquire Office of General Counsel Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Thomas J. Pilacek, Esq. Springs Offices 2101 W. State Road 434 Suite 105 Longwood, FL 32774 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302
The Issue This case is presented for consideration based upon a claim by the Petitioner, E. R. Brannon, Sr. against the Respondent, Brevard County Sheriff's Department, contending that the Respondent, by its employment practices, has unlawfully discriminated against the petitioner Brannon related to an alleged handicap, in violation of Subsection 23.167(1)(a), Florida Statutes. In view of this purported violation, Petitioner Brannon requests money damages in the way of back salary payments and benefits, together with attorney's fees, in keeping with Subsection 23.167(13), Florida Statutes. The Petitioner Brannon declines the opportunity for any reinstatement in his former employment with the Brevard Sheriff's Office. In defending against these accusations, the Respondent has plead certain affirmative defenses and contends that its action dismissing the Petitioner Brannon was lawful in view of the provision, Subsection 23.167(8)(a), Florida Statutes, specifically related to the portion of that provision dealing with taking action based upon the need for an absence of a particular handicap as related to a "bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related."
Findings Of Fact Case History On April 2, 1979, the Petitioner, F. R. Brannon, Sr., executed a form complaint of discrimination with the Petitioner, Florida Commission on Human elations, which challenged his dismissal by the Brevard County Sheriff's Department, which occurred on January 5, 1979. After reviewing the complaint, the Petitioner Commission, by action of September 11, 1980, as filed on September 16, 1980, made its determination of case, i.e., reasonable cause to believe an unlawful employment practice had occurred reference the Brevard County Sheriff's Department's dismissal of the Petitioner Brannon. A separate notice of the determination of cause was forwarded to the complainant Brannon and the Respondent, Brevard County Sheriff's Department, on September 16, 1980. Efforts were then made to reach conciliation between the contesting parties and these efforts were unsuccessful and notification of this failure of conciliation was forwarded by the Commission on October 21, 1980. On November 21, 1980, counsel for the Petitioner Brannon made known his appearance before the Commission through written Notice of Appearance and filed a Petition for Relief on the subject of the aforementioned claim brought by the Petitioner Brannon. By document dated November 25, 1990, and placed on file November 26, 1980, the Commissioners of the Florida Commission on Human Relations were notified of the filing of Brannon's Petition for Relief from alleged unlawful employment practice. Subsequent to that notification, Brannon's Petition was transmitted to the State of Florida, Division of Administrative Hearings for consideration of the claim. This transmittal was made on November 26, 1980, and received by the Division of Administrative Hearings on December 1, 1980. On December 1, 1980, counsel for the Respondent, Brevard County Sheriff's Department, filed its answer to the Petition and statement of affirmative defenses. The Respondent also, by motion of that date, moved to dismiss the Petition. The Motion to Dismiss was denied on December 12, 1980. On December 31 1980, the Respondent, in the person of its former counsel, Charles F. Broome, Esquire, wrote to the Hearing Officer to advise that there had been a change in administration in the Brevard County Sheriff's Office and that the newly elected sheriff wished to have a substitution of counsel. There ensued a series of contacts on the part of this Hearing Officer to establish a hearing date which would accommodate the change in administration and substitution of counsel. After consultation with the parties, the month of March, 1981, was tentatively selected as a time for hearing. This determination was made upon consultation with counsel for the parties, to include Catherine Riley, Esquire, the substituted counsel for the Brevard County Sheriff's Office. The case was subsequently scheduled for hearing on March 9, 1981. Prior to the time for hearing, a letter was written by counsel for the Respondent on January 16, 1981, to advise that one of her witnesses was unable to attend the hearing until after March 30, 1981. By correspondence dated January 22, 1981, in response to the letter of January 16, 1981, which had been addressed to counsel for the Petitioner, counsel for the Petitioner acquiesced in the continuance of the hearing and asked that the matter be set at the first available date beyond March 29, 1981. The correspondence was treated as a motion to continue the case on behalf of the Brevard County Sheriff's office, and the matter was reset for hearing on April 9, 1981. The Respondent, Brevard County Sheriff's Department, had also moved to file an additional affirmative defense, and this motion was granted on February 2, 1981. The initial session of the hearing was held on April 9, 1981, and continued until May 29, 1981, allow the hearing to be concluded. The hearing was concluded on May 29, 1981, and this Recommended Order is being entered after such hearing. In the way of argument, the parties have submitted written memoranda through counsel and have suggested proposed findings of fact, conclusions of law and recommended disposition in this matter. To the extent that those proposals, conclusions and recommendations are consistent with the Recommended Order, they have been utilized. To the extent that the proposals, conclusions and recommendations are inconsistent with this Recommended Order, they are hereby rejected. Material Facts The Petitioner, E. R. Brannon, Sr., is an individual who was forty- three (43) years of age at the time of the formal hearing. In the course of his adult life he has worked primarily in law enforcement for a period of sixteen (16) to seventeen (17) years, to include service to the Lake City, Florida, police Department; Eau Gallie, Florida, Police Department: Melbourne, Florida, Police Department; two periods of service with the Brevard County, Florida, Sheriff's Office; the Orange County, Florida, Sheriff's Office and the Marion County, Florida, Sheriff's Office. On July 4, 1974, while working for the Marion County Sheriff's Office as a line deputy, the Petitioner Brannon was shot in his left side and left hand in an attempt to apprehend a felon. He was given a period of convalescence by his employer and then returned as an investigator for the Marion County Sheriff's Office. In September, 1976, after being returned to duty, the condition in his left hand was exacerbated by another job related injury, leading to the eventual amputation of his left hand on November 9, 1980, after the hand had become gangrenous. This final treatment intervention followed a series of approximately twenty (20) operations over the period of time following the initial gunshot wound. The Petitioner Brannon left his employment with Marion County and in January of 1977, took employment with the Brevard County Sheriff's Office where he was hired as a Lieutenant in charge of the division dealing with communications and vehicle maintenance. At all pertinent times to this inquiry, his employer, the Brevard County Sheriff's Office, was an employer with fifteen (15) or more persons working for that entity, for a period of twenty (20) weeks or more during the year. While Brannon was working for the Brevard County Sheriff's Office, he was placed in the position of Captain, awaiting pay adjustment to that grade. At the time of his dismissal from the Brevard County Sheriff's Office on January 5, 1979, he was receiving a salary of approximately $1,260.00 per month, with an additional $175.77 per month contributed for the benefit of his retirement. While serving as the Division Commander of the Communications and Maintenance Unit of the Brevard County Sheriff's Office, Brannon had as many as thirty (30) persons under his supervision. Brannon bad been hired by Sheriff Ronald W. Zimmerman and worked for that individual until September, 1978, when Zimmerman was suspended. Following Zimmerman's suspension from September, 1978, until January 5, 1979, the date of his discharge, Brannon worked for Sheriff David U. Strawn. During the course of Brannon's service under the command of Sheriff Strawn, the problem with Brannon's hand caused him mild to severe pain and led to frequent usage of Demerol and Vistaril to accommodate this problem. Although the visits were not made during working hours per se, Brannon made numerous visits to a local hospital during the September, 1978, to January 5, 1979, time frame, for purposes of treatment. The degree of his discomfort and the effect on Brannon was such that by January 30, 1979, his treating physician, Dr. Maurice Hodge, was of the opinion that Brannon was "totally disabled because he is unable [sic] to use his hand for any gainful purpose. See Petitioner's Exhibit No. 6, admitted into evidence and attachment identified as Respondent's No. 1. Notwithstanding the physical discomfort, Brannon attempted to perform his role as Deputy Sheriff and supervisor; however, there were numerous absences from duty during the time of the Strawn administration, to include a period December 18, 1978, through December 30, 1978. All of these absences were accounted for as authorized holidays, annual leave or sick leave. James H. Garvin, presently a Captain in the Brevard County Sheriff's Office, in the position of Jail Supervisor, was emoloyed with that Sheriff's Office during Sheriff Strawn's tenure. At that time, his office in the Sheriff's complex building was located adjacent to that of Brannon and to the extent that the two officers had contact, Garvin did not have difficulty with work coordination involving Brannon. Other officers who had association with Brannon during the time of Strawn's service as Sheriff, included Johnny L. Manis, who was a Captain in 1978, in the Brevard County Sheriff's Office. The communication section was included in his area of responsibility and upon Brannon's dismissal, Manis took over the responsibilities which Brannon had fulfilled in the communications section. Upon taking over, Captain, now Lieutenant, Manis, found the morale in that section to be less than acceptable and the turnover rate to be, in his estimation, excessive. Captain Charles Tenvooren who served as a Major in the Strawn administration, had supervisory responsibility for Brannon in that time period and recalls that Brannon was in the hospital at times. Tenvooren knew that Brannon was being treated for the condition related to his arm and hand and observed impairment in Brannon's job function. As supervisor, he spoke with Sheriff Strawn about the medication that Brannon was taking. Tenvooren also spoke with Brannon about the problem of impairment related to the injury to the arm, as described by the witness Tenvooren. Brannon, in talking with Tenvooren, mentioned the pain which he was experiencing. Lieutenant Harmon B. Wisby testified in the course of the hearing. When Strawn was Sheriff, Lieutenant Wisby was the coordinator of the reserve auxiliary group of the Sheriff's Department. During that time sequence, Wisby was aware of the fact that Brannon was under medication, information he gained from conversations he had with Brannon. Brannon indicated ythat he was having pain and that he was to go back to the hospital. Brannon also indicated to Wisby that he had been given medication to assist him in coping with the pain. Wisby recalls several times when Brannon did not seem aware of his surroundings while he was in the office building, in that Brannon would not respond to him when spoken to in the form of a greeting. Alice Alderman who is a Communications Officer with the Brevard County Sheriff's Office, who worked in the communications section while Brannon was supervisor during the Strawn administration, testified at the hearing. She admits that she had a personality conflict with Brannon. Nonetheless, she testified that during this time sequence he seemed to be "distant." Another employee within the communications section who testified at the hearing was Debbie Walden who was a Communications Dispatcher in the Brevard Sheriff's Office at the time that Strawn was Sheriff. Brannon was her shift supervisor and she recalls numerous absences by Brannon, who from her recollection worked on the same shift on which she was employed. She also indicated that morale was a problem at the time that Brannon was in charge of the section. On January 5, 1979, through correspondence, Sheriff Strawn dismissed Brannon. A copy of the dismissal may be found as Petitioner's Exhibit No. 5, admitted into evidence. In the course of the hearing, Strawn indicated that his decision to dismiss no basis for the correspondence was premised on evidence gained from other personnel in the Sheriff's Office; the medical reports pertaining to the Petitioner's physical condition related to his hand; the prognosis on that condition; the uses of pain medication; a few personal observations of the Petitioner in which Strawn felt the Petitioner to be "spacey"; the belief that the Petitioner was not capable of line duty, i.e., responsibilities as an armed deputy; the problem which Brannon appeared to have approaching his job with a "clear head"; the high turnover in the communications section, indicating a problem with management by Brannon; a property control problem related to equipment which Brannon had in his charge and Brannon's lack of ability as an administrator and supervisor. All of Strawn's background reasons and observations were an accurate depiction of the circumstance with the exception that there was insufficient proof in the course of the hearing to demonstrate that Brannon had acted inappropriately on the subject of property control of equipment in the communications section. Likewise, reported observations by coworkers are correct. In particular, the use of pain medication for the handicap related to the injured arm and hand was such that Brannon was incapable of performing the duty of a line officer charged with the direct protection of the public and the possibility of use of force to effect that purpose. This medication also compounded Brannon's problems as an administrator. When the dismissal letter was drafted, the prime focus of that letter was to the effect that the Sheriff's Office was concerned about Brannon's return to employment duties because of the belief by the Department that there would be exposure for liability in terms of workmen's Compensation claims by Brannon, in that the Sheriff's office believed that they would be entirely liable for physical disability if Brannon suffered an "industrial accident" while acting in the scope and capacity of his position within the Department. In further explanation, it was stated that the Department believed the health circumstance of Brannon was intense in view of the pain and associated use of special medications. For these reasons, Strawn was concerned that any negligent act by Brannon could result in liability for the Department, apparently from claims by third parties. The letter of dismissal went on to say that his duties were not being performed as well as expected because of Brannon's physical condition and the necessity for taking drugs to cope with those problems and further concern for fellow officers and members of the public. This statement can be related to Brannon's potential abilities as a lane officer and his primary function as supervisor of the communications and maintenance section. (Notwithstanding the fact that Brannon was not serving on a day-to-day capacity as a line officer, as a Deputy Sheriff he could reasonably be expected to be pressed into service in the eventuality of some emergency which called upon all appointees within the Sheriff's Office who are deputies to serve in that capacity, and as Brannon himself stated at the hearing, Sheriff's deputies are technically on duty twenty-four (24) hours a day.) Finally, the impression was created in the hearing process that the Strawn administration had been concerned about Brannon's absenteeism and morale in his section. Although this is not expressly stated in the letter of dismissal, the facts presented in evidence bear out the contention that Brannon was absent an inordinate number of times, notwithstanding the fact that the absences were taken under legitimate leave principles, and there were problems related to morale in the communications section. In addressing Strawn's worries, there was no procedure undertaken for formal evaluation of Brannon's performance. Sheriff Strawn did discuss Brannon's physical condition with him and what the Sheriff perceived to be a problem with the communications equipment inventory control system. On January 8, 1979, Brannon began to look for alternative employment and gained such employment with the Brevard County Public Safety Division, within the Brevard County Board of County Commissioners on march 26, 1979, and was employed by them until January 14, 1981. During the course of his employment, he received $16,812.40 in gross earnings, and was provided life insurance commensurate with his annual salary, as well as health insurance. In addition, this employer "paid-in" at the rate of 9.1 percent of annual salary, into a retirement system. This payment to the retirement system was not made during leave without pay between July 1, 1980, and August, 1980. Following his employment with the Brevard Counts' Public Safety Division, Brannon worked for the Sheriff of Lake County, Florida, eighteen (18) to twenty (20) days, a month maximum. Following Brannon's dismissal from the Brevard County Sheriff's Office, he also requested social security disability benefits in the summer of 1980, and that claim is now pending.
The Issue Whether Respondent is, for purposes of Chapter 760, Florida Statutes, an "employee" of Petitioner. Whether Respondent has committed an unlawful employment practice against Petitioner by failure to hire him on the basis of race, to wit: African-American.
Findings Of Fact Petitioner is an African-American male. At all times material, he was employed as a member of the Flagler County, Florida, Sheriff's Department. In 2001, he had worked for the Sheriff's Department in some capacity for twenty years and had held the rank of sergeant for twelve years. In June 2001, he was a Sheriff's Department patrol sergeant. As such, he supervised Sheriff's Department officers on patrol. Respondent City of Bunnell is a municipality located in Flagler County, Florida. It is governed by a five-person City Commission, including its mayor. At all times material, the Commissioners were Mayor King and Commissioners Fell, Henry, Edmonson, and Marquis. Herein, Petitioner asserts that Respondent City discriminated against him due to his race because he was not appointed to the position of Acting Police Chief of the City of Bunnell, pursuant to an interlocal agreement the City never entered-into with the Sheriff's Department In early 2001, the City's full-time Police Chief resigned, and the City began to advertise for a full-time replacement. Petitioner lived in Bunnell, and was aware of the open position of full-time City Police Chief, but he elected not to apply. One reason for his decision not to apply was that he had twice applied unsuccessfully in the mid-1990's. Another reason was that by 2001, Petitioner was set in his career path with the Flagler County Sheriff and with his accruing State retirement benefits. Employment with the City would not have continued to accrue him State retirement benefits. At all times material, all of the City police officers were Caucasian. While seeking a full-time Police Chief, the City kept the City Police Department functioning by relying on a series of "Acting Police Chiefs"; Police Corporal Harrison; and Donna Kearney, Administrative Assistant to the City Manager. At all times material, Corporal Harrison was supervisor for the City Police Department's "road patrol." Donna Kearney had handled some clerical and scheduling functions of the City Police Department since the City had been seeking a full-time Chief of Police, but she was not a police officer. She also has never been certified as a law enforcement officer by the Florida Department of Law Enforcement. At all times material, James Manfre was the elected Sheriff of Flagler County. He had assumed that office on January 2, 2001. The Sheriff is a constitutional officer and the chief law enforcement officer of Flagler County. Sheriff Manfre is Caucasian. His main offices are not in Bunnell, Florida. The Bunnell City Police Chief was restricted in what she/he could do. She/he had to have City Manager approval to hire, to promote, or to reprimand police officers. The Bunnell City Police, including the Police Chief, were expected to work out of City property, the Police Department, located in Bunnell. Despite a series of "Acting" Chiefs of Police who served while the City advertised the full-time position, by June 2001, the efficiency of the City Police Department had been suffering for some time. City police officers' morale was low, and their attitudes were bad. Citizens were complaining about their frequency of patrols and general inefficiency. The Saturday before the June 19, 2001, City Commission Meeting, Acting Chief of Police John Ashton quit as Chief and returned to regular duty as a Bunnell City Police Sergeant. This apparently was due to a salary dispute with the City. On June 19, 2001, the City Commission met to discuss Acting Chief/Sergeant Ashton's compensation. Present at the June 19, 2001, City Commission Meeting were Mayor King (gender and race not of record); and Commissioners Fell (male Caucasian), Henry (female African- American), and Edmonson (male Caucasian). Commissioner Marquis was absent. Commissioner Edmonson was a former City Police Chief who had been fired several years previously for making a racist comment against African-Americans. At the June 19, 2001, City Commission meeting, Mayor King and Commissioner Fell took a moment to cite the City Police Department for doing a good job. Corporal Harrison also spoke to the Commission. Prior to June 19, 2001, the City had approached Sheriff Manfre about the Sheriff's Office taking over the City police functions until the City could hire a full-time police chief. Sheriff Manfre attended the June 19, 2001, City Commission meeting and made a presentation concerning having the Sheriff's Department supervise the City Police Department's road patrol for a period of 90 days to allow time for the City to find and hire its own permanent Police Chief. After the Sheriff's presentation, Commissioner Fell moved a vote, which was seconded by Commissioner Henry.1/ The Motion failed to get a majority. After further discussion, there was a motion to reconsider. Ultimately, a motion to start negotiating the proposed interlocal agreement was passed unanimously by Commissioners King, Fell, Henry, and Edmonson.2/ Negotiations between the Sheriff and the City ensued, and the Sheriff's attorney drafted a proposed interlocal agreement. On June 22, 2001, another City Commission meeting was held. At that time, only three City Commissioners were present: King, Fell, and Henry. Edmonson and Marquis were absent. Thus, there was no quorum to conduct business. Nonetheless, Sheriff Manfre spoke before the Commission, as did several members of the public and Corporal Harrison. Another Commission meeting was scheduled for June 25, 2001, to, among other things, vote on whether or not to approve the proposed interlocal agreement. Upon the hopeful predictions of his attorney and his own optimism because the City had initially approached him, Sheriff Manfre signed the proposed draft of the interlocal agreement on June 22, 2001, and wrote in that the agreement was to be effective as of June 22, 2001. That draft was never approved by the City Commission or signed by anyone on behalf of the City. Paragraph 2 of the proposed interlocal agreement provided, in part, "This Agreement shall be interpreted and administered in such a manner that it will not constitute a transfer, merger, or consolidation as those terms are used in the Constitution of the State of Florida or in any statute of the State of Florida." There was no clear consensus among the witnesses who testified about whether the language of the proposed agreement was designed to provide the City with an interim police chief or with a supervisor of its road patrol, a position already occupied by Corporal Harrison. The Sheriff testified that he had in mind to detail Petitioner to the City Police Department position, whatever that position was, and that he had spoken to Petitioner about it. The Sheriff's intent was based on Petitioner's rank; capabilities; and familiarity with City issues, due to Petitioner's residency in Bunnell. The Sheriff envisioned Petitioner operating out of the City Police Department; having daily interaction with the City police officers; and dictating to/directing the City police officers. Petitioner never read the proposed interlocal agreement, yet he "knew" that, under it, he would be supervising road officers, and he assumed that if the proposed interlocal agreement went through, he would become the City Police Chief. The proposed interlocal agreement also is not clear as to whether the Sheriff was to provide an interim police chief or a supervisor of the City's road patrol. Paragraph 4 of the proposed interlocal agreement set forth the services to be provided by the Sheriff. Specifically, the Sheriff would "provide supervision for all necessary and appropriate law enforcement services in and for the CITY." Paragraph 4 also provided that a "command officer" would be assigned as "supervisor" of the City's patrol deputies. Paragraph 12 of the proposed interlocal agreement provided, in pertinent part: PERSONNEL: The SHERIFF shall have authority for the hiring, training, assignment, discipline and dismissal of all law enforcement personnel subject to his supervision under this Agreement. The SHERIFF shall also be legally responsible for the action of law enforcement personnel performing services under this Agreement in accordance with law. Any employee of the SHERIFF is not for any purpose whatsoever, an agent, employee, or legal representative of the City and are in no way authorized to make any contract, agreement or representation on behalf of the CITY or to create any obligation on behalf of the CITY. (Emphasis supplied) The Sheriff's unilateral hiring and disciplining authority in paragraph 12 of the proposed interlocal agreement would have been a departure from City Manager authority in that regard. (See Finding of Fact 11). Paragraph 9 of the proposed Agreement specifically designated the Sheriff as an "independent contractor." In addition to the foregoing explicit language contained in the draft proposal at paragraph 2 (see Finding of Fact 23) and paragraph 9, Sheriff Manfre's testimony supports the concept that the Sheriff would have continued to be Petitioner's employer, whatever Petitioner's title, if the proposed interlocal agreement had been approved by the City Commission. The Sheriff was clear that at all times the supervising officer he would designate under the agreement would remain an employee of the Sheriff's Department, even while carrying out duties for the City. Paragraph 18 of the proposed agreement granted the Sheriff "authority to expend funds from the existing Bunnell Police Department budget" to operate the City Police Department under the Sheriff's supervision. Despite some contrary language, one could reasonably interpret the proposed agreement to delegate to the Sheriff decisions on how much and for what purposes City money would be spent on City law enforcement. Paragraph 17 of the proposed interlocal agreement provided that the agreement would terminate after 90 days from its effective date, unless both parties agreed to review it. Also, either party could terminate the agreement prior to the end of its term upon 30 days' written notice. Paragraph 17 also reserved to the City the right to require the Sheriff to transfer and replace any personnel, who, in the sole determination of the City, failed to perform consistent with City standards. This paragraph would seem to have permitted the City unilateral removable rights over whomever the Sheriff could appoint under the interlocal agreement. On June 25, 2001, the City Commission met and again discussed the proposed interlocal agreement. Commissioners King, Fell, Henry, and Edmonson were present. Marquis was again absent. Several members of the public spoke on the issue of whether the agreement should be approved. Among others, Donna Kearney spoke against what she saw as "the Sheriff's proposal," because she interpreted the proposed agreement as duplicating the position of "road supervisor," which was already filled by Corporal Harrison of the City Police Department, and because she felt a permanent police chief was needed. Delories Hall, an African-American citizen, spoke in support of the proposed agreement because she felt her neighborhood, which is predominantly African-American, was poorly protected by the City Police. Corporal Harrison spoke again at the June 25, 2001, meeting. Although the content of his comments is not of record, it may be presumed, from the evidence as a whole, that he opposed the interlocal agreement. On June 25, 2001, some City Police Officers spoke to the Commissioners, generally opposing the agreement between the City and the Sheriff. They felt their professional performance had recently improved and that they should be given another chance to correct the problems that had led to the proposal of the interlocal agreement. After the public discussion closed on June 25, 2001, Commissioner Henry made a motion to accept the proposed interlocal agreement, with several revisions. Commissioner Edmonson seconded Commissioner Henry's motion.3/ The vote resulted in King and Henry supporting the proposed agreement, with revisions, and Commissioners Fell and Edmonson opposing the proposed agreement, even if revised. As a result of the "two- to-two" vote, the motion did not pass, and the proposed agreement which had previously been signed by the Sheriff, never took effect. The record herein does not explain how the proposed revisions were to be presented to the Sheriff by the City Commission. The exact revisions proposed by the Commission are not of record. They were not interlineated over the Sheriff's signature on the two copies of his proposed draft of the interlocal agreement which are in evidence, nor did witnesses seem clear whether there ever were any written proposed revisions. Finally, the Commission's Minutes in evidence do not reflect the proposed revisions. Commissioner Fell testified, without refutation, as to several reasons he had ultimately voted against the proposed agreement in any form. None of his reasons addressed race. Most of his concerns were financially based, but he also worried that the Sheriff was making a "power play." From Mr. Fell's point of view, if the proposed interlocal agreement were approved, the Sheriff would be supervising law enforcement throughout the entire county, and through similar interlocal agreements, would be supervising law enforcement in all but two cities within the county. Although the City of Bunnell had problems with its police department, Mr. Fell wanted to give the local police officers another chance. He expressed confidence in Corporal Harrison. Commissioner Edmonson testified that on June 25, 2001, he voted against the proposed agreement because several City police officers, including Corporal Harrison, had spoken to him before the Commission meeting and asked that he give them one more chance to operate without outside help, and that he had told them he would vote them another chance, but it would be their last chance. The Sheriff's attorney advised the Sheriff of the negative June 25, 2001, Commission vote by phone on June 25, 2001. The Sheriff, in turn, placed a phone call to his friend, Commissioner Edmonson. Commissioner Edmonson and Sheriff Manfre spoke by cell phone while the Sheriff was driving on the Florida Turnpike. Their respective versions of this bad connection and frequently distracted conversation are very different. According to the Sheriff, Edmonson told him that Edmonson had "heard" that some of the City police officers would not report to an African-American. However, even Sheriff Manfre conceded that Edmonson did not say this knowledge motivated Edmonson's vote against the proposed interlocal agreement. Commissioner Edmonson denied the statement attributed to him by Sheriff Manfre. He claimed to have stated to the Sheriff that some City police officers had a problem with Petitioner, personally, and that the Sheriff needed to check into that problem. Edmonson further testified that when the Sheriff asked if the problem was because Petitioner was African- American, he, Edmonson, had denied that race was the issue, and the Sheriff hung-up. On this point, Commissioner Edmonson is the more credible witness. Commissioner Edmonson further testified that if the Sheriff had not terminated their cell phone conversation when he did, Edmonson would have explained to the Sheriff that the City police officers had told Edmonson they were upset over an incident several weeks prior to June 25, 2001, when Petitioner, acting for the Sheriff's Office, had released an individual in City Police Department custody. Because Petitioner denied that any such release of an arrestee by Petitioner ever occurred, and because there was no explanation how, without an interlocal agreement in force, Petitioner would have had any authority to release a City arrestee, it has not been proven that such an incident occurred. However, there was no evidence to refute Edmonson's testimony that this story had been told him by police officers and no evidence that race, rather than Petitioner's personality or an interlocal power struggle, influenced Edmonson's vote on June 25, 2001. Finally, paragraph 17 of the proposed agreement (see Findings of Fact 33-34) would have given the City a unilateral right to require transfer of anyone assigned by the Sheriff pursuant to the interlocal agreement, and even to terminate the agreement, itself, upon 30 days notice. Such an options suggest that if race had been an issue, it could have been addressed at any time later. A few days after June 25, 2001, the Sheriff issued a press release denouncing the City Commission vote as "racist." Much public uproar ensued. Then the Sheriff appeared at an NAACP meeting with Commissioner Edmonson "to heal" the situation created by his press release. There were no further negotiations on an interlocal agreement. Corporal Harrison next served as interim City Police Chief. In either August or September 2001, the City finally hired a full-time Police Chief. The hiree was Caucasian. Apparently urged on by the Sheriff's public stance, Petitioner filed a Charge of Discrimination with the Commission on or about March 1, 2002. Therein, Petitioner named the "Flagler County Sheriff's Office" as the offending employer or governmental agency. However, on April 5, 2002, Petitioner amended his Charge to reflect that the employer or governmental agency involved was the City of Bunnell. No evidence was presented as to any damages Petitioner incurred due to the tied vote of the City Commission on June 25, 2001. There was no evidence Petitioner would have been paid more money or would have received greater fringe benefits if he had been appointed by the Sheriff to serve the City in any capacity under the proposed agreement. There was no evidence Petitioner did not continue to receive his regular compensation and benefits from the Sheriff after the City rejected the proposed agreement. Petitioner has prayed for attorney's fees, but by agreement, the parties have deferred that issue until the merits of the case are determined by the final order.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and the Petition for Relief for lack of jurisdiction. DONE AND ENTERED this 7th day of June, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2004.
Findings Of Fact 1. On April 18, 2014, the Board issued an Invitation to Bid (‘2014 ITB”) for holding pond and related grounds maintenance work. The 2014 ITB specifically advised bidders that the Board reserved the right to contract “all or none, or by group to responsible and responsive bidder(s) determined to be the most advantageous to the District, taking into consideration price, product quality and other requirements as set forth in this ITB.” The language in the 2014 ITB gives the Board the discretion to award the contract to one bidder, several bidders or no bidders. 2. The 2014 ITB specifically advised bidders of their right to challenge the terms and conditions of the ITB. Petitioner, Mark's Lawn Maintenance, Inc., did not challenge the terms or conditions of the 2014 ITB. 3. The 2014 ITB specifically informed bidders that local and small business certification preferences were available to bidders, where applicable. Petitioner was given a 3% local preference for having a business in an adjoining county. Val’s Lawncare, Inc. ("Val's”) received a 5% small business certification preference. Applying the discount, Val's was the lowest bidder. 4. In 2007 and 2010, the Board issued ITBs for holding ponds and grounds maintenance services, and, each time, the contract was awarded to multiple bidders. 5. The 2014 ITB was awarded in accordance with the terms and conditions set forth therein, and not any prior practice or any language from prior ITBs.
Conclusions This matter came upon before the Board for entry of a Final Order upon entry of an Order Relinquishing Jurisdiction by June McKinney, an Administrative Law Judge of the Florida Division of Administrative Hearings, and, having reviewed the same, and ail other matters of record, and being otherwise advised in the premises, the Board finds and concludes as follows:
