Conclusions On October 27, 2014, an Administrative Law Judge (“ALJ”) with the Division of Administrative Hearings (“DOAH”) entered her ORDER CLOSING FILE AND RELINQUISHING JURISDICTION (“DOAH ORDER”) to the Madison County School Board (the “SCHOOL BOARD” or the “BOARD”) in the above captioned proceeding. A copy of the DOAH ORDER is attached hereto as Exhibit A. The DOAH ORDER indicates that copies were sent to counsel for the SCHOOL BOARD, George T. Reeves, Esq., and counsel for the Petitioner, NEW MILLENNIUM CHARTER SCHOOL, (the “CORPORATION”). The DOAH ORDER was stipulated to by the parties. This matter is now before the SCHOOL BOARD for final agency action.
Findings Of Fact On or about February 13, 1995, Petitioner, Hillary Sklar, filed Petitioner's Second Amended Petition. Ms. Sklar has challenged the Department's determination that an amendment to the City's comprehensive plan adopted by Ordinance No. 94-2-2 was "in compliance." In the second amended petition Ms. Sklar made the following allegations concerning her standing to institute this proceeding: * * * 2. The Petitioner's address is 11321 Southwest 49th Place, Fort Lauderdale, 33330, in the County of Broward, Florida. * * * 4. On February 8, 1994, the Respondent passed Ordinance NO. 94 -2 -2 authorizing the implement- ation of Land Use Plan Amendment 94 - S - 1. The Land Use Plan Amendment affects property located at 11791 Southwest 49th Street, Cooper City, in the County of Broward. . . . * * * Petitioner's property is located in a section of unincorporated Broward County which abuts and adjoins the property in question. Petitioner's property has been defined by Respondent as an "enclave." Petitioner's property is similarly situated to those of property owners in Cooper City and will be affected more than those property owners located in Cooper City; including, but not limited to, the allegations contained in Paragraphs 10 through 17, inclusive. Petitioner made objections to the ordinance at the February 8, 1994 City Council meeting discussing adoption of the ordinance. . . . * * * Ms. Sklar has still failed to allege that she resides, owns property or operates a business located with a City of Cooper City address or which otherwise is subject to the jurisdiction of the City of Cooper City. The oral objections made by Ms. Sklar were made at a public hearing of the City of Cooper City Council held on February 8, 1994. According to the minutes of that meeting, Ms. Sklar "said the zoning is a done deal and the annexation and sale was a done deal. Why should it be a done deal before the Public Hearing was held, she asked." The factual information contained in the Preliminary Statement of this Recommended Order is hereby incorporated by reference.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order dismissing the Petitioner's Second Amended Petition, filed by Hillary Sklar. DONE AND ENTERED this 24th day of March, 1995, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1995. COPIES FURNISHED: Edward R. Curtis, Esquire Bruce Botsford, Esquire 1828 S.E. 1st Avenue Fort Lauderdale, Florida 33316 Suzanne H. Schmith Certified Legal Intern Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Silvia Morell Alderman, Esquire Suite 1200 106 East College Avenue Tallahassee, Florida 32301 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
Findings Of Fact Respondent Jorge L. Cabrera owns a parcel of land on Plantation Key some 2.73 acres in size. It is adjacent to U.S. Highway 1 and was previously zoned BU-2, a medium business district zoning classification. Respondent Cabrera filed his rezoning petition seeking a rezoning to BU-3Y, which would have permitted, among other uses, a cement plant, a petroleum storage and distribution facility, warehouse facilities, the repair and storage of construction equipment, an asphalt plant, or industrial parks. He initially informed the Zoning Department of Monroe County, in conjunction with his application for rezoning, that he intended to use the subject site as a storage area for construction equipment. The Respondent's property is located in a predominantly business area. Immediately across the highway is the State of Florida Highway Patrol Station, through which all trucks passing through the Florida Keys must stop for weighing. The property adjacent to the Respondent's property has a mixture of uses, including a gas tank storage area, a church, a bakery, a trucking company immediately adjacent to the property, heavy equipment storage and a radio transmission tower. To the rear of the property is a parcel owned by Howard Bonebrake consisting predominantly of mangrove wetlands. Howard Bonebrake appeared before the Zoning Board at its April 22, 1982, hearing in Key West, as did representatives of the Upper Keys Association and other residents in the Upper Keys Association and other residents in the Upper Keys and the vicinity of the subject site, in opposition to the proposed rezoning. The Department of Community Affairs is the state land planning agency designated by Chapter 380, Florida Statutes, to undertake statewide comprehensive planning. This project lies within Monroe County, Florida, which is the local government agency which issued the development order respecting the proposed development. On April 19, 1982, at a meeting held in Marathon, Florida, the Board of County Commissioners of Monroe County discussed the Zoning Board meeting which was scheduled for April 22, 1982. The minutes of the County Commission meeting reflected that the following action was taken under the category "Reports and Recommendations of Board Members": A motion was made by Commissioner Blair and seconded by Commissioner Harvey instructing the Zoning Board to Continue the meeting scheduled for April 22, 1982, to the Upper Keys consistent with the Board's policy of holding meetings in the areas affected. Roll call vote was taken and carried unanimously. No copy of a resolution embodying this Commission action has been placed into evidence. On April 22, 1982, the Zoning Board held a public hearing in Key West, Florida. Among the items on the agenda was Respondent Cabrera's rezoning application. Zoning Board Member Dagny Johnson sought to have that rezoning petition continued. A member of the Monroe County Commission, Jerry Hernandez, appeared before the Zoning Board at that hearing and advised the Board that it was the intent of the County Commissioners in that April 19 motion to allow the Zoning Board to decide whether the rezoning application by Cabrera was a "controversial issue" or not. He further advised the Zoning Board that it was the Board of County Commissioners' policy to hold hearings in the area of zoning impact or change when controversial issues were involved. He further advised the Board that the County Commission did not seek to dictate a decision on the location of the public hearing to the Zoning Board, but that that was a decision the Zoning Board must make itself. The chairman of the Zoning Board then stated that he had received no instruction from the County Commission to continue the hearing. Zoning Board Member Johnson then moved to have the Zoning Board hear zoning cases in the area in which the pertinent property is located. That motion failed for lack of a second. The Zoning Board's resolution granting Respondent Cabrera the requested rezoning was appealed to the Monroe County Board of County Commissioners, which affirmed the Zoning Board's decision on August 9, 1982. A motion for rehearing was denied by the County Commission on August 23, 1982. Among the arguments advanced in the appeal to the County Commission and in the rehearing were that the Zoning Board had violated its procedural rules and the County Commission's instructions by hearing the rezoning petition in Key West instead of at the property site on Plantation Key. In spite of the fact that the hearing was conducted in Key West, the adjoining landowner and others in the above association who opposed the rezoning applications had notice of and were in attendance at the rezoning hearing. Under Monroe County's Major Development Ordinance, adopted by reference as Rule 27F-9.17, Florida Administrative Code, parcels of land of five acres or more involved in a zoning application are considered to be major developments, and their developers are required to submit extensive environmental and public service impact statements. The Zoning Board and its staff also have discretionary authority to declare a project slightly smaller than five acres to be a major development and entitled to such detailed survey and study if the anticipated use is likely to be environmentally damaging, or if the projects meet certain other specific major development criteria. Monroe County's Chief Planner, Dr. Jeffery Doyle, testifying on behalf of Petitioner, established that no project under three acres had ever been considered by the Zoning Board or its staff to be a major development, nor has any concrete batching plant in Monroe County been declared to be a major development by the Zoning Board or its staff in the past. Concrete batching plants are different, in terms of environmental impacts, from large cement-producing plants, which pose substantial environmental considerations due to their release of substantial dust and particulate pollutants. Such is not the case with the relatively small concrete batching plant involved in this rezoning application and order. Although there was some speculation regarding large amounts of water which a concrete batching plant might use, water being relatively scarce in the Keys, no potential environmental damage posed by the rezoning and the resultant construction or installation of the concrete batching plant was shown. It was not demonstrated at the hearing before the Zoning Board, nor the Hearing Officer, that this project meets any criteria for being characterized as a "major development." Although a witness for the Petitioner, former County Commissioner Curtis Blair, stated that it was his belief that Monroe County had a policy of hearing zoning applications in the area where the property to be rezoned is located, he was unable to recall any actual adoption of such a policy. He acknowledged that no such rules of procedure for locations of Zoning Board hearings had been placed of record by the County Commission or the Zoning Board and admitted no such rules of procedure for hearing locations had been adopted. Rather, specific requests have been made from time to time of the Zoning Board on specific zoning matters regarding locating the hearings related thereto near the site of the property at issue. The purpose of this supposed "policy" would be to allow citizens most affected by a zoning change to appear and testify regarding it. Representatives of the Upper Keys Citizens Association and the neighbor, Mr. Bonebrake, all of whom oppose the project, were present at the hearing in this instance, however, and testified before the Zoning Board despite the fact that the venue of the hearing was in Key West. At the time the County Commission passed its April 19, 1982, motion regarding the request of the Zoning Board to hold the hearing in Plantation Key, the public notice of the Zoning Board hearing had already been promulgated and published and notices had already been sent to the adjacent property owners. Further, the Zoning Board's agenda had already been promulgated and published. Mr. Blair admitted that the April 19, 1982, motion was never incorporated in a resolution of the Board of County Commissioners. Former Zoning Board Member Dagny Johnson, testifying for the Petitioner, was of the belief that the Zoning Board had a policy to hold meetings in the affected locality, but could not establish the source of any such policy. She admitted that her view of that policy was in the minority and that the other four Zoning Board members did not agree with her that such a policy existed. Although she was certain that all major development projects which were the subject of zoning hearings were heard in the area affected, she could not recall that all other zoning change matters were heard in the affected locality and, in fact, recalled a number of cases where zoning applications were duly agendaed and noticed to the public involving projects outside the locality where the Zoning Board hearing was conducted. Both witnesses Johnson and Doyle for the Petitioner conceded that the applicant's statement of his intended use of the subject property to be rezoned has "no significance" and that the zoning applicant's intended use is not required to be advertised to the public. Rather, the proposed zone change is the subject of public notice. The applicant, once having secured BU-3Y zoning, could erect whatever structure or perform whatever use that zoning permitted, regardless of the use he may have initially proposed in the zoning application. The applicant's intended use could change; and once the property is rezoned, the property can be put to whatever use the applicant and owner chooses, provided it is within the authorized uses of the new zoning. Respondent Cabrera in this instance informed the Zoning Board at the hearing of his ultimate intended use, that is, the erection of a concrete batching plant. This was before his application was finally considered and voted upon. He informed the neighboring landowners personally of the intended use of the property prior to the Zoning Board hearing. Those neighboring landowners were in attendance at the hearing and were given an opportunity to oppose his application. At the Zoning Board hearing of April 22, 1982, Ms. Johnson made a motion calling for the Board to affirm the existence of a policy requiring all zoning changes to be heard in the portion of the Florida Keys where the properties which are the subject of the zoning applications are located. This motion was rejected by the Board, and thus at that point the Zoning Board had not affirmed the existence of such a definite policy. There is no dispute that there is no written rule or policy of the Zoning Board requiring zoning matters to be heard in the locality of the property which is the subject of a zoning application. Further, the Zoning Board's agendas do not show any consistent pattern that such hearings are conducted in the venue of the subject property; rather, some rezoning applications were agendaed in the locality of the property involved, and some were agendaed outside of the area involved in zoning or rezoning applications. It was not shown that the Zoning Board's agendas uniformly set rezoning applications for hearing in the area of impact. Thus, it was not established that any such policy existed in April, 1982, the time period pertinent hereto.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED: That the Petition of the Department of Community Affairs be DENIED. DONE AND ENTERED this 20th day of December, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1983. COPIES FURNISHED: Eric Taylor, Esquire Barry F. Chiles, Esquire Assistant Attorneys General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301 Mr. John T. Herndon Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301 James T. Hendrick, Esquire Albury, Morgan & Hendrick, P.A. 317 Whitehead Street Key West, Florida 33040 E. Baxter Lemmond, Esquire Assistant County Attorney Monroe County 310 Fleming Street Key West, Florida 33040 C. Laurence Keesey, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301 The Honorable George Dolezal Box 1029, Duck Key Marathon, Florida 33050 The Honorable Bob Graham Governor The Capitol Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 The Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 The Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 The Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301
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.
The Issue The issue is whether Respondent homeowners’ association properly revived its expired Declaration of Covenants, Conditions, and Restrictions in accordance with sections 720.403- 720.407, Florida Statutes.
Findings Of Fact Petitioners own residential properties in Bayhead Landings community (the “Community”). Petitioners are members of Respondent, Bayhead Landings Property Owners Association, Inc. (the “Association”). The Association has historically operated and governed the Community. The Declaration of Covenants, Conditions, and Restrictions of the Association (the “Declaration”), by its terms, provided that it would expire at the end of 2010, unless it was renewed in accordance with its terms. Because the Declaration was to expire, by its terms, at the end of 2010, the Association attempted to preserve the Declaration, prior to its expiration, on more than one occasion, the last of which was in the latter part of 2010. At that time, a membership vote to approve the preservation was conducted by written consents, pursuant to chapter 617, Florida Statutes. The membership vote resulted in 41 votes in favor and zero votes against preserving the Declaration, with six abstentions or non-votes. In the fall of 2013, Petitioners in this consolidated matter, with the exception of the Whitts, commenced a suit against the Association, seeking to invalidate the 2010 preservation and seeking a determination that the Declaration had expired, by its terms, and become void on December 31, 2010 (the “Declaratory Suit”). While the Whitts were not plaintiffs in the Declaratory Suit, they were parties to the pre-suit mediation demand and took part in the pre-suit mediation, prior to the filing of the Declaratory Suit. In their Petitions and in testimony at the final hearing in this matter by Petitioner, Daniel J. DiCiolla, Petitioners have continued to assert that the Declaration had expired and become void on December 31, 2010. In early 2014, the plaintiffs in the Declaratory Suit filed a motion for summary judgment, based on several arguments, one of which was that the Association had improperly conducted the 2010 preservation vote by written consent, instead of voting in person or by proxy at a duly noticed meeting. At the March 17, 2014, hearing on the Plaintiffs’ Motion for Summary Judgment, plaintiffs’ counsel, who is also the Petitioners’ counsel in this proceeding, argued that the Declarations “weren’t preserved” and that if the Association wanted to protect the property, it could always revitalize the Declaration. The court in the Declaratory Suit, by final judgment dated March 24, 2014, granted summary judgment in favor of the plaintiffs, holding that the 2010 preservation vote, because it was conducted by written consent, had been ineffective, and that the Declaration was therefore void, as of its expiration date on December 31, 2010. As of January 1, 2011, the Declarations were declared expired by the Pasco County Court in case number 2013-CC-003057. On April 2, 2014, the Association appealed the final judgment on various grounds. The trial court, on May 15, 2014, entered an order staying the effect of the final judgment pending the appeal (the “Stay Order”). The Stay Order was thereafter amended, on June 12, 2014 (the “Amended Stay Order”), to allow members, instead of paying their assessments to the Association, to pay such assessments to the escrow account of plaintiffs’ counsel, who is also counsel for Petitioners in this matter. The Association, prior to the Declaratory Suit, had incurred substantial legal costs in successfully defending two pieces of litigation. The Amended Stay Order, while providing that the Association could petition for the release of assessments paid into the escrow account held by plaintiffs’ counsel, provided, in paragraph 6, that no such funds could be released for payment of the Association’s past legal fees. The entry of the summary judgment and the Stay Order created confusion among the membership, as a result of which many members believed they had no continuing obligation to pay their assessments, and made no such payments. While the appeal was pending, the Association took steps to revive the Declaration, pursuant to sections 720.403- 720.407, Florida Statutes. The Board of Directors (the “Board”) for the Association appointed a committee (the “Organizing Committee”) to administer the revival of the Declaration. The appointment of the Organizing Committee was published to the membership of the Association at the annual members meeting held on May 10, 2014. Petitioners, Audie Childers and Daniel J. DiCiolla, were present at the May 10, 2014, annual members meeting at which the appointment of the Organizing Committee was announced to the membership. The Organizing Committee had no formal meetings, but met in a series of work sessions at which administrative functions, such as stuffing and placing postage on envelopes, making copies, mailing out letters, receiving letters, and counting ballots, were performed. Notice of these sessions was not provided to the members of the Association. The Organizing Committee never held a meeting at which a final decision was made regarding the expenditure of Association funds, and the Organizing Committee was never vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the Community. In its effort to revive the Declaration, the Association obtained a majority vote of the membership in favor of revival, consisting of 26 affirmative votes, in accordance with section 720.405(6). The revival vote was conducted by written consent, in accordance with section 720.405(6). The revived Declaration was approved by the Florida Department of Economic Opportunity, by letter to the Association dated August 21, 2014. Once the revival was complete, the Association dismissed the appeal. Plaintiffs’ motion for attorney’s fees and costs remained for determination by the appellate court at the time of this hearing. The parcel owners of real property governed by Respondent are still subject to the stay and required to pay assessments and otherwise comply with the Declaration. The Bylaws governing Respondent were at all times in full force and effect, and the ruling in the Pasco County Court case did not invalidate the Bylaws. The Bylaws were written in 1990 before chapter 617, Florida Statutes, was revised to allow not-for-profit corporations to use written consents, and provided that the only method allowed for the membership to vote was either in person or by proxy at a duly noticed meeting. The Declaration and Bylaws were written and recorded in 1990, before sections 720.403-720.407 were enacted in 2004. Petitioners were at no time opposed to the preservation of the Declaration or the revival of the Declaration. Petitioners introduced no evidence in support of any damages suffered as a result of the Declaration being revived.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order dismissing the Petitions and affirming its approval of Respondent’s revival. DONE AND ENTERED this 1st day of April, 2015, 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 1st day of April, 2015. COPIES FURNISHED: Barbara Billiot Stage, Esquire Law Offices of Stage and Associates, P.A. 7635 Ashley Park Court Orlando, Florida 32835 (eServed) Gary M. Schaaf, Esquire Becker and Poliakoff, P.A. Suite 100 1511 North Westshore Boulevard Tampa, Florida 33607 (eServed) Robert N. Sechen, General Counsel Department of Economic Opportunity Caldwell Building, Mail Stop Code 110 107 East Madison Street Tallahassee, Florida 32399-4120 (eServed) Jesse Panuccio, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4120 (eServed) Katie Zimmer, Agency Clerk Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4120 (eServed)
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 Steven Leftwich is a certified building contractor, having been issued license No. CB C005800. At all times here relevant he was qualifying contractor for Monterey Builders, Inc., for whom he was president and chief operating officer. On 6 June 1979 Monterey Builders, Inc., entered into a contract with Dale and Edna Reed (Exhibit 4) to construct a residence for them on their lot at Bonita Springs at a total cost of $69,426.00. The contract did not provide for institutional lender financing but provided the Reeds would make periodic cash payments upon the completion of certain stages of construction. Pursuant to this contract, Reed paid $6,942.60 prior to the start of construction and two additional payments of $13,885.20 each as the work progressed, with the third payment on October 27, 1979. The lot required additional fill. The contract included a fill allowance of 400 yards and provided that the owner (Reed) would pay for all extras costing in excess of $100.00 at the time of request. By letter dated October 22, 1979 (part of Exhibit 8), Respondent advised the Reeds that payment for fill dirt was long overdue and, unless payment was received by October 26, 1979, they would be considered in breach of contract. Another page of Exhibit 8, which purports to be an undated and unsigned addendum to the contract between Monterey Builders and the Reeds, shows delivery of 404 yards of fill on 7-26- 69[sic], 465 yards on 7-27-79, and 170 yards on 7-30-79. Written on the bottom of this document is "DISCUSSED 10/15/79." The month of the final draw is missing from the copy of Exhibit 6, admitted into evidence, but, from the testimony of Mrs. Reed, appears to be October, as found in finding No. 2 above. Since the second draw was on 9-24-79, it is unlikely that another $13,885.20 would have been paid three days later. The date of this third payment is significant only in that it corroborates Mrs. Reed's testimony that the third payment was made after the dispute over the fill arose. When Monterey demanded payment for the 600 yards of fill allegedly used over the 400 yards allowed, Reed disputed the accuracy of this amount of fill. He engaged surveyors to compute the fill and this confirmed his belief that he was being overcharged for fill and declined to pay the amount demanded. Parenthetically, it is noted that one 16-yard load would have to be delivered every 20 minutes for nine hours on 26 July to place 404 yards on the property and at the same frequency of delivery it would take ten hours to deliver the 465 yards Monterey claimed was delivered on 27 July 1979. Regardless of the accuracy of the claim for fill delivered, the Reeds made the third payment of $13,885.20 after the fill dispute in the amount of $2,556.00 arose. Nevertheless, the Respondent contends that, by failing to pay the disputed bill for additional fill, the Reeds breached the contract and Monterey Builders was thereby relieved from continuing work on this contract. Prior to stopping work on the project, Monterey Builders collected the third draw from the Reeds and had roofing material delivered to the site. When the third payment was made, the slab had been poured, plumbing roughed in, masonry walls completed, and lintel poured. Petitioner's witness estimated the project 15 percent complete, while Respondent claims the project was 35-40 percent complete. In November the Reeds went to West Virginia to attend the wedding of Mr. Reed's son and when they returned a few days later the roofing material had been removed from the site, all builder's supplies had been removed, and the house remained in the stage of construction that existed when the third payment was made. At this time the Reeds had paid a total of $34,713, exactly 50 percent of the contract price. Efforts to contact Respondent were not too successful and work was never resumed by Monterey Builders. Respondent testified that the profit on the contract had been booked by Monterey "up front" before any expenses were paid; that he purchased the roofing material out of funds provided by Reed; and that when the project was abandoned and the roofing material returned, this sum was credited to the Reed account. Despite the Reeds' demands that Respondent complete the contract, and the entering of a judgment in the Circuit Court for Collier County against Monterey Builders, Inc., for the sum of $37,243.00 plus costs when Monterey Builders failed to continue on the contract, the Reeds have been unable to recover any money from Respondent or Monterey Builders, Inc. Following the discontinuance of the work on this contract by Monterey Builders, Mrs. Reed filed a complaint with the Lee County Construction Board. On January 22, 1981, at a scheduled hearing of the Lee County Construction Board Mrs. Reed's complaint against Respondent was considered. The Board voted to suspend Steven Leftwich's permit privileges and forward the findings on to the State (Exhibit 1). Lee County Ordinance No. 76-11 (Exhibit 2) provides for the licensing of contractors by Lee County (issuance of certificates of competency) and for revocation and suspension of these certificates for cause. Among those causes for which certificates can be revoked is "abandonment of any contract without legal excuse or justification." This ordinance provides for notice to affected contractors by certified mail to their last known address. Respondent contends that he was unaware of the hearing at which his privileges were suspended. Exhibit 1 shows Respondent was not present at that hearing. There was no record in the Lee County file that showed notice was mailed to Respondent in accordance with Ordinance No. 76-11 requirements.
