The Issue Whether Petitioner David Russ has standing to bring these proceedings.
Findings Of Fact Petitioner Russ did not submit oral comments to the local governments between the time of the transmittal hearing for the plan amendment at issue in this case and the adoption of the plan amendment. Petitioner Russ testified that he faxed letters to Tallahassee City Commissioner Ron Weaver and Leon County Commissioner Gary Yordan during the required time period, but this assertion is not corroborated by any other testimony or exhibits. Although Petitioner Russ testified that he used paper- printed original documents to effectuate the fax of the written comments or letters, he did not present any documentary evidence in corroboration. He presented no documents or other evidence of attempts to follow-up or confirm receipt of his faxed comments by the local governments. A reasonable, diligent and thorough search by those personnel charged with responsibility for maintaining correspondence files of City Commissioner Ron Weaver and Leon County Commissioner Gary Yordan, as well as the joint city/county planning department, was conducted in order to locate the written comments purportedly faxed to the local governments by Petitioner Russ. No documents, relating to those written comments and allegedly sent during the comment period for the plan amendment, have been found. Petitioner Russ admitted at the hearing that he possesses copies of all correspondence and pleadings generated by himself in this challenge to the amended plan with exception of those initial written comments. In the course of his testimony, Petitioner Russ speculated with regard to his inability to corroborate his assertion that he did fax written comments. That speculation included his supposition that computerized copies of the documents in his computer may have been lost through possible destruction of the files during a computer repair or renovation, or that he might have saved the documents on a floppy disk which has subsequently been misplaced. The overwhelming evidence clearly and convincingly establishes that the documents are not, and have never been, in the possession of the local governments in this case. Such evidence results in the finding that contrary testimony, absent some extrinsic corroboration that the documents were submitted, cannot be credited.
Recommendation It is recommended that a final order be entered in this case, Division of Administrative Hearings Case Number 97-2750GM, finding that Petitioner Russ is without standing to maintain these proceedings and dismissing his Petition Challenging Plan Amendments And Findings of Compliance. DONE AND ENTERED this 22nd day of August, 1997, at Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1997. COPIES FURNISHED: James V. Cook, Esquire 217 South Adams Street Tallahassee, Florida 32301 James W. Linn, Esquire Cari L. Roth, Esquire Post Office Box 10788 Tallahassee, Florida 32302 Deborah Minnis, Esquire C. Graham Carothers, Esquire Ausley and McMullen Post Office Box 391 Tallahassee, Florida 32302 Julie E. Lovelace, Esquire James R. English, Esquire City Hall 300 South Adams Street Tallahassee, Florida 32301 David J. Russ, Esquire 6823 Donetail Trail Tallahassee, Florida 32308 Sherry A. Spiers, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 James F. Murley, Secretary Department of Community Affairs Suite 100 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100 Stephanie Gehres Kruer, Esquire Department of Community Affairs Suite 325-A 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue The issue is whether Respondent, Ed DePuy, committed the following violations as alleged in the Ethics Commission's Order Finding Probable Cause dated December 9, 2009, and the Supplemental Order Finding Probable Cause dated September 8, 2010: Whether Respondent violated s ection 112.3143(3)(a), Florida Statutes, regarding a July 11, 2006, vote/measure which affected a real estate development in which Respondent had an interest. Whether Respondent violated section 112.3143(3)(a) regarding an August 22, 2006, vote/measure which affected a real estate development in which Respondent had an interest. Whether Respondent violated s ection 112.3143(3)(a), regarding a January 9, 2007, vote/measure which affected a real estate development in which R espondent had an interest. Whether Respondent violated s ection 112.3143(3)(a) regarding a March 13, 2007, vote/measure which affected a real estate development in which Respondent had an interest. Whether Respondent violated a rticle II, section 8 of the Florida Constitution by failing to disclose income received in 2007 on his 2007 CE Form 6, Full and Public Disclosure of Financial Interests. Whether Respondent violated s ection 112.3143(3)(a) regarding a January 9, 2007, vote/measure which would inure to the special private gain or loss of a principal by whom Respondent was retained or to the special private gain or loss of the parent organization or subsidiary of a corporate principal by which Respondent was retained. Whether Respondent violated s ection 112.3143(3)(a) regarding a March 13, 2007, vote/measure which would inure to the special private gain or loss of a principal by whom Respondent was retained or to the special private gain or loss of the parent organization or subsidiary of a corporate principal by which Respondent was retained. h. Whether Respondent violated article II, section 8 of the Florida Constitution, by failing to disclose a secondary source of income received in 2007 on his 2007 CE Form 6, Full and Public Disclosure of Financial Interests.
Findings Of Fact Respondent served as a member of the Leon County Commission (LCC) from approximately June 2001 to December 2002 as an appointed official, and from November 2004 until November 2008 as an elected official. Respondent is subject to the requirements of Part III, chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees, for his acts and omissions during his term as a member of the LCC. Centerville Farms is a planned community development consisting of 975 acres with plans for 200 residential units. Centerville Conservation Group, LLC (CCG) and Centerville Conservation Group, II, LLC (CCG II) are the owners of Centerville Farms, each owning an undivided one-half interest in the entire parcel. The development utilizes a clustering plan by which approximately 70 percent of the property is held in conservation easements, and the lots are reduced in size and clustered in closer proximity to accommodate the conservation lands. Centerville Farms' Planned Unit Development (PUD) was approved by the LCC in 2004, prior to any of the votes at issue in this case. Legal interest in CCG and CCG II is held by Jon Kohler (25%) and Hurley Booth, Jr. or a trust controlled by Mr. Booth (75%). Phase 1 of Centerville Farms contains 91 lots. Phases 2 through 4 of Centerville Farms contain 109 lots. The LCC's attorney, Herb Thiele, testified that in 2002 or 2003, the Leon County Comprehensive Plan and land use map were amended to allow conservation subdivisions in certain land use categories. In 2004, Centerville Farms underwent an extensive process of governmental review and approval as a PUD. Mr. Thiele testified that a PUD constitutes a rezoning of the subject property and is a designation generally applicable only to mixed-use developments. Though Centerville Farms is a single-use residential development, the County required a PUD because of the configuration of the lots and of the overall development. On October 12, 2004, the LCC passed Ordinance No. 04-31, which rezoned the property and approved the Centerville Farms PUD. The ordinance and documents referenced therein established the zoning and the preliminary site plan including all substantive elements of the Centerville Farms development, including the fact that it was to consist of a total of 200 lots. Respondent was not serving on the LCC when the Centerville Farms PUD was approved. After the PUD approval, Centerville Farms underwent a Type B site review in accordance with Section 10-7.404 of the Leon County Code of Ordinances (Leon County Code). This review finalized the substantive elements of the development, including the size, location and configuration of each of the 200 building lots, the conservation easements, and the infrastructure improvements. The finalization of the Centerville Farms plans through the Type B site review was part of the PUD process and did not require a vote of the LCC aside from the initial passage of Ordinance No. 04-31. The Development Review Committee approved Centerville Farms as a Type B site and development plan on January 23, 2006. Respondent was not involved with the Type B site review of the Centerville Farms project. The Centerville Farms PUD and plats showed that the development would have ingress and egress from Centerville Road and from Pisgah Church Road. The latter road was at the time a red clay dirt road. Mr. Thiele testified that, in a development with the expected traffic volume of Centerville Farms, the County normally requires the developer to ensure access from a paved public road. Ordinance No. 04-31 provided that the LCC should "investigate the traffic impacts upon Pisgah Church Road, and the safety implications that may necessitate paving a portion or all of Pisgah Church Road." The LCC completed a study of this issue in 2005 and then entered into an agreement with CCG and CCG II that required the companies to pave the road, and to donate funds to Leon County to contribute toward repaving when such became necessary. Mr. Thiele testified that this agreement was made in late October 2005.2/ Mr. Thiele testified that once the ordinance was passed and the PUD had been adopted by the LCC, the developer had substantive property rights in the PUD approval. Once the PUD was approved, the developer could begin making preliminary site improvements. Mr. Thiele testified that the LCC had the discretion to approve or deny the development at the PUD approval stage. The adoption of Ordinance No. 04-31 rendered the subsequent approval of the plats for Phases 1 through 4 of the project ministerial acts that required no policymaking or discretionary review. A plat either meets the criteria set forth in the Leon County Code and Part I of chapter 177, Florida Statutes, or it does not. If the plat meets those criteria, the developer could initiate a mandamus action against the County if for some reason the LCC refused to approve it. Mr. Thiele testified that in his 21 years as the Leon County attorney, he has never seen the LCC flatly deny the approval of a plat. There may be a problem with the plat, such as an incorrect survey or an unaccounted-for property interest, but such problems involve only a temporary delay in approval pending cure of the problem. On March 17, 2005, Respondent entered into a contract to purchase Lot 60 (since renumbered as Lot P2) in Phase 1 of Centerville Farms for $170,000. Respondent closed on Lot P2 in October 2006. In June 2007, Respondent sold Lot P2 to Chris Kise for $225,000, a gain of $55,000. Respondent did not disclose the income from the sale of Lot P2 on his 2007 Form 6. On May 16, 2005, Respondent entered into a contract to purchase Lot 184 (since renumbered as Lot I1) in Phase 2 of Centerville Farms for $210,000. Respondent closed on Lot I1 in October 2007. Jon Kohler, the 25 percent member of CCG and CCG II, was the broker in charge of marketing Centerville Farms. Respondent understood that Mr. Booth had an interest in the companies developing Centerville Farms, but Respondent dealt exclusively with Mr. Kohler and sales director Erica Glidewell in purchasing his two lots. On July 11, 2006, the LCC considered Agenda Request 27, which sought approval of the plat of Phase 1 of Centerville Farms and a performance agreement and surety device in the amount of $2,045,076.26. The staff's agenda request noted that the project had been approved as a Type B site and development plan, and that the portion being platted consisted of 438.92 acres containing 89 lots.3/ The agenda request further provided: As of the date of the preparation of the agendum, staff reviews have not been completed by the appropriate agencies and departments. The developer is requesting the Board's approval prior to final review being completed due to date sensitive contractual obligations coupled with the next scheduled Board meeting not being until August 22. Staff will not record the plat until final review and approval by all appropriate departments. Staff recommends the Board accept the plat and approve recording upon completion of staff's review. Should the review necessitate a change in the plat, staff will resubmit it to the Board for ratification. Mr. Thiele testified that the approval of the plat made no material change in the number or size of the lots or in their configuration as against the PUD adopted in 2004 by Ordinance No. 04-31. The approval of the plat created no new rights or obligations for the developer. Mr. Thiele also stated that no one other than the developer may take legal title to a lot prior to approval of the plat.4/ If a lot is conveyed prior to plat approval, the County considers it an illegal subdivision of the property and will not issue a building permit for the lot. Mr. Thiele testified that the purpose of a performance agreement and surety device is to ensure that the approved infrastructure is built in accordance with the approved plat. Since the early 1990s, the Leon County Code has required the developer to post a surety device. The County's professional engineering staff determines the amount of the surety device, which by ordinance must cover 110% of the estimated cost of completion.5/ The staff monitors the project as the developer completes the infrastructure. As the infrastructure moves toward completion, it is typical for the developer to request a reduction in the amount of the surety device to reflect the reduction in the remaining risk that the project will not be completed. Mr. Thiele testified that the performance agreement is on a form that the County sends to the developer to accompany the surety device. He stated that Leon County has been using the same performance agreement form for at least 19 years. Respondent voted to approve Agenda Request 27 on July 11, 2006. On August 22, 2006, the LCC considered Agenda Request 35, which sought acceptance and ratification of a conservation easement for Phase 1 of the Centerville Farms project. In the agenda request, staff explained that the conservation easement was required by the County's Growth and Environmental Management department as part of the site plan review and permit process, but was inadvertently left out of the July 11, 2006, agenda package. Mr. Thiele testified that conservation easements are found in section 704.06, Florida Statutes, and that the statutory requirements for conservation easements are mirrored in the Leon County Code.6/ The conservation easement is granted by the property owner to Leon County, and gives the development rights in the property to the County for the purpose of keeping the property in its natural state in perpetuity. Mr. Thiele further testified that the conservation easement approved in this vote and those approved on January 9, 2007, were generally approved in Ordinance No. 04-31, though the precise locations of the easements were approved by staff during the Type B site review. The site plan is merely a refinement of the approval contained in the PUD. Mr. Thiele testified that, because the easement requirement was part of Ordinance No. 04-31, the votes on the conservation easements on August 22, 2006, and January 9, 2007, were ministerial votes. The LCC's discretion regarding the easements was limited by the previously approved PUD. If the conservation easement meets the requirements of the PUD and the Type B site approval, the LCC lacks the discretion to disapprove it. The LCC's vote was necessary to formally accept the easement on behalf of Leon County because staff is not permitted to accept property on behalf of Leon County. The Advocate presented the testimony of Neal R. Boutin, Jr., who was accepted as an expert in real estate appraisal. Mr. Boutin examined whether the existence of a conservation easement within a residential subdivision in Leon County has an impact on the value of a single family lot. Mr. Boutin compared Centerville Farms to four other developments in the immediate area. He conducted a market survey of real estate brokers and financial institutions. While noting that the wide range of variables from property to property made it impossible to attribute a specific value to the conservation easement, and that his market survey yielded no specific findings, Mr. Boutin nonetheless concluded, based on his "experience and common sense," that the easement would have some positive impact on the value of a lot.7/ Respondent voted to approve Agenda Request 35 on August 22, 2006. At all times relevant to this proceeding, Respondent maintained his practice as a governmental consultant/lobbyist, either as an individual contracting directly with clients or as the employee of a lobbying firm, in addition to serving on the LCC. At some point between August 22, 2006, and October 17, 2006, Respondent was retained by three Booth companies: Boothco Hansford, LLC, (Boothco Hansford), Boothco Coastal, LLC, (Boothco Coastal), and Booth Holdings Booth Trust, LLC (Booth Holdings Booth Trust). Respondent worked for these entities until at least May 3, 2007. Respondent provided lobbying services regarding Booth developments in Franklin and Jefferson Counties. These three companies were indisputably Respondent's principals for purposes of section 112.3143(3)(a). Boothco Hansford, Boothco Coastal, and Booth Holdings Booth Trust, were lawfully organized, and remained in existence at the time of the hearing. Each company did business and owned property in its own name. None of these companies owned shares of either CCG or CCG II, nor did CCG or CCG II own shares in these three companies. Mr. Booth, or a trust of which he is a trustee, has a controlling interest in Boothco Hansford, Boothco Coastal, LLC, and Booth Holdings Booth Trust. Robert Williams is an attorney who acted as the chief executive officer of the Booth companies from 2005 through 2008. Mr. Williams testified that during his tenure there were approximately 100 companies operating under the Booth aegis, and that real estate development was their main business. Mr. Williams was in charge of the day-to-day operations of the Booth companies. He reported directly to Mr. Booth, but testified that Mr. Booth left most of the operational decisions to him. Mr. Booth made the final decisions on important strategic issues. Mr. Booth is a personal friend of Respondent, and he made the decision to hire Respondent. However, once Respondent began working, he reported to Mr. Williams.8/ Respondent reported to Mr. Williams in person every month or so and met with project engineers more frequently.9/ Respondent believed himself to be employed by Boothco Hansford, Boothco Coastal, and Booth Holdings Booth Trust in their corporate capacities. Respondent was never under the impression that he was personally employed by Mr. Booth. Neither Respondent nor Mr. Booth recalled having any conversations with each other regarding the Jefferson and Franklin County projects, and both denied ever discussing the Centerville Farms project with each other. Mr. Williams did not recall that Respondent was ever asked to perform services for any project in Leon County. Mr. Williams never heard any discussions with Respondent about Centerville Farms. Mr. Williams testified that Respondent warned him at the outset of his hiring that he would have to recuse himself "from anything that we had before the County Commission." Respondent testified that he never worked for any Booth entity that was doing business in Leon County, and never believed that he had been retained by CCG or CCG II. Respondent stated that his only involvement with CCG or CCG II involved the purchase of his lots from Mr. Kohler and Ms. Glidewell. Respondent understood that Mr. Booth had an ownership interest in Centerville Farms, but was uncertain of its nature. Respondent and Mr. Booth both denied ever having private discussions about Centerville Farms. Mr. Williams explained that at the time Respondent was hired, the Booth companies were reassessing their projects in light of the deteriorating economy. Respondent was hired to help the Booth companies "touch base" with local government officials in Jefferson and Franklin counties to gauge the best uses for their properties during the downturn. Boothco Hansford was the company formed to own and oversee the Bailey's Mill development in Jefferson County. Boothco Coastal was formed to own and oversee the Eastpoint development in Franklin County. Mr. Williams stated that Respondent did not "lobby" on behalf of Boothco Hansford and Boothco Coastal, but that he did "talk to people" about the projects. Respondent was paid through the Booth companies' central management system. The Booth companies' controller, Nicolo Calabro, testified that he kept separate bookkeeping entries for each Booth company, but that each company did not have a separate bank account. All payments to Respondent for Booth company work were made through Booth Holdings Booth Trust, and the accounting software indicated for which company the work was done. The charges for the work would be attributed to the company that owned the real estate, and Respondent would receive a 1099 from that company. Respondent's connection to Booth Holdings Booth Trust was limited to receiving payments through this central accounting system. The record indicates that Respondent received six payments of $3,000 each from an account of Booth Holdings Booth Trust. The payments were dated October 17, 2006, November 30, 2006, January 18, 2007, March 1, 2007, April 5, 2007, and May 3, 2007. The four checks received by Respondent during 2007, totaled $12,000. The 1099s received by Respondent in 2007 indicated that the payments were accounted for as follows by the Booth entities: $8,100 from Boothco Hansford, $3,000 from Booth Holdings Booth Trust, and $900 from Boothco Coastal.10/ On November 14, 2006, the LCC considered Agenda Request 29, which was a status report on Leon County's agreement with CCG and CCG II regarding the provisions for the replacement of the pavement on Pisgah Church Road. The specific issue was the amount that the developer should be required to deposit with the County to pay for the anticipated repaving of the road eight to ten years after the initial use of "open graded cold mix" (OGCM) asphalt to pave the road. Mr. Thiele testified that the County's usual practice is to require the developer to pave the road with regular asphalt. However, in settling previous litigation over development, the County had agreed not to allow any more paved roads within Bradfordville, an area that includes the Centerville Farms property. Mr. Thiele testified that the County concluded that it could comply with the settlement by requiring Centerville Farms to use OGCM, which is drivable but more porous than regular asphalt. Because OGCM does not have the same life expectancy as regular asphalt, the County and the developer agreed in October 2005 that the developer would pay for one repaving of Pisgah Church Road. See Finding of Fact 10, supra. The agenda item permitted the LCC to consider the developer's request that the $500,000 amount of the deposit be reduced, in consideration of the fact that the County would hold the money in an interest-bearing account for eight to ten years preceding the need to repave the road. The motion was for the LCC to direct staff to negotiate with the developer to arrive at a number reflecting the amount of the deposit necessary to provide for repaving in eight to ten years' time. Respondent recused himself from voting on Agenda Request 29 on November 14, 2006. As required by law, Respondent filed a Form 8B, Memorandum of Voting Conflict for County, Municipal, and Other Public Officers on November 27, 2006. The Memorandum of Voting Conflict stated that a measure came before the LCC that inured to the special gain or loss of "Booth Properties," by whom Respondent was retained as a consultant. At the final hearing, Respondent testified that his rationale for recusing himself had less to do with his representation of the Booth companies outside of Leon County than with his contracts to purchase two lots in the Centerville Farms development. Respondent stated that the paving of Pisgah Church Road could not help but improve the value of the lots in Centerville Farms, and that he did not wish to appear to be voting to improve the value of his own property. Respondent testified that he consulted with Mr. Thiele prior to the November 14, 2006, Commission meeting, and Mr. Thiele advised him to err on the side of caution to avoid anything that might appear inappropriate.11/ Respondent testified that Mr. Thiele prepared the Memorandum of Conflict for his signature. Respondent acknowledged that the Memorandum of Conflict mentioned his employment with the Booth companies but failed to mention Respondent's interest in the lots in Centerville Farms. He testified that he signed the Memorandum because his arrangement with the Booth companies was also a valid reason to recuse himself under the circumstances.12/ On January 9, 2007, the LCC considered Agenda Request 18, requesting approval of seven conservation easements for Phases 2, 3, and 4 of Centerville Farms. The staff analysis of the proposal stated as follows: The proposed conservation easements place the landowner and all other subsequent landowners on legal notice that development is prohibited in the protected areas. Acceptance of the conservation easements will require County approval. The proposed easements do not create any County maintenance responsibility or any other County responsibility for the easements. The property owner will still own and protect the land as appropriate under conditions of the proposed easements. Respondent voted to approve Agenda Request 18 on January 9, 2007. On March 1, 2007, Respondent accepted a salaried position as an employee of SCG Governmental Affairs, LLC (SCG), a Tallahassee lobbying firm. Under the employment agreement, Respondent brought his existing clients to SCG, and they became clients of SCG. All work performed on behalf of those clients was billed by SCG, and any receivables due to Respondent from those clients became the property of SCG. In accordance with the employment agreement, Respondent signed over to SCG the checks he received from Booth Holdings Booth Trust on April 5, 2007 and May 1, 2007. These checks were deposited into SCG's bank account and reported as income by SCG.13/ Respondent's 2007 income from the Booth companies was therefore not the $12,000 indicated on the original 1099s, but $6,000 from the checks issued on January 18 and March 1, 2007, prior to Respondent's employment with SCG.14/ As noted at Finding of Fact 47, supra, $8,100 of the $12,000 indicated on the original 1099s was attributable to Boothco Hansford. However, the $3,000 check dated April 5, 2007, was part of that $8,100, meaning that it was actually the property of SCG. The May 3, 2007, check for $3,000 was entirely attributable to Booth Holdings Booth Trust. It, too, was the property of SCG. Therefore, Respondent's actual 2007 income from these entities was $5,100 from Boothco Hansford and $900 from Boothco Coastal. On March 13, 2007, the LCC considered Agenda Request 16, which involved the following: For Phase 1, a request by CCG that Leon County release the existing $2,045,076.26 performance agreement and surety device and replace it with one totaling $532,324. The County's Public Works Engineering division had inspected the subdivision and reviewed the construction estimate for completion of the remaining infrastructure and concurred with the estimated amount for the replacement performance agreement and surety device; For Phase 2, a request by CCG that the plat be recorded. Because Phase 2 had complete infrastructure within the development proper, no performance or maintenance agreements or surety devices were required. However, a portion of Pisgah Church Road, west of Centerville Road, would be affected by the development. Therefore, the plat included a dedication of additional right-of-way along Pisgah Church Road. The development's permit requirements also mandated that Pisgah Church Road be improved by utilizing open graded cold mix asphalt (OGCM). Initially, the improvements to Pisgah Church Road were to be completed prior to plat approval. The proposed amendment to the CCG/County agreement allowed for the plat to be approved with the guarantee that the Pisgah Church Road construction would be completed by a date certain, enforced by a $300,000 public construction bond. CCG further agreed to contribute an additional $300,000 to the County for future costs of repairing and replacing the OGCM. After review and comment from various divisions of the County, Commission staff recommended approval of the plan in conjunction with the $300,000 public construction bond for the Pisgah Church Road improvements, and recording of the plat contingent upon compliance with all provisions of the amended agreement, including issuance of operating permits, receipt of payment of the $300,000 OGCM repair and replacement contribution, and delivery of the $300,000 bond for the Pisgah Church Road construction; For Phases 3 and 4, a request by CCG that the plats be recorded. After review and comment from various divisions of the County, Commission staff recommended approval of the plats in conjunction with construction and infrastructure performance agreements in the amount of $400,165.00 for Phase 3 and $694,472.00 for Phase 4. Recording of the plats would be contingent upon compliance with all provisions of the amended CCG/County agreement and delivery of the surety devices associated with the Phase 3 and Phase 4 performance agreements. Mr. Thiele testified that the vote to record the plats for Phases 2-4 was similar to the July 11, 2006, vote to approve the recording of the plat for Phase 1, in that Phases 2-4 had also been approved as part of Ordinance No. 04-31 and were subject to the same Type B site review approval process. The vote to record the plats for Phases 2-4 was likewise ministerial and non-discretionary. Mr. Thiele stated that the March 13, 2007, vote changed nothing regarding the configuration or size of Centerville Farms. The approved plats were identical to the plan of the Type B review. The plat approval created no new rights for the developer and did not allow the developer to do anything not already approved by the Type B site review. Mr. Thiele testified that the vote to approve performance agreements and surety devices for Phases 3 and 4 involved the same principles and was taken pursuant to the same ordinances as the vote to approve the performance agreement and surety device for Phase 1, discussed at Findings of Fact 21 and 22, supra. Mr. Thiele testified that the vote to release the existing $2,045,076.26 performance agreement and surety device and replace it with one totaling $532,324 simply reflected that the developer had completed the bulk of the infrastructure requirements. After inspecting the project, County staff applied the same formula and the same 110 percent multiplier to arrive at a surety device that insured completion of the remaining infrastructure. Mr. Thiele testified that such a reduction in the amount of the surety is typical in large scale developments with surety devices in excess of $1 million. It indicates that infrastructure has been completed, not that the infrastructure requirements are being lessened. Mr. Thiele believed that the vote to reduce the surety was ministerial, in that the same standards were applied to the substituted surety device as were applied to the original surety device. Mr. Thiele testified that the reduction in the amount of the OGCM replacement deposit from $500,000 to $300,000 reflected the fact that the replacement of the OGCM would not occur for about ten years given normal usage, and that $300,000 held at an average interest rate would cover the cost of replacement in ten years' time. See Finding of Fact 50, supra. Mr. Thiele stated that the LCC was recognizing that the original $500,000 estimate was too high. Respondent voted to approve Agenda Request 16 on March 13, 2007. The parties to the instant case stipulated that "there is no legal obligation for a developer/landowner to disclose the number of lots in a subdivision that are under contract, or the number or identity of persons holding contracts. There was no evidence that Respondent had any idea how many Centerville Farms lots were under contract at the times he cast his votes on July 11, 2006, August 22, 2006, January 9, 2007, and March 13, 2007. The number of lots under contract during the relevant times was disclosed during the discovery process by Ms. Glidewell, and only after considerable effort on her part to piece together the information. At the time of the July 11, 2006, and August 22, 2006, votes, 90 of the 91 lots in Phase 1 were under contract for sale to 41 persons or entities. These numbers do not include any transfers or assignments of contracts from the original purchaser to a third party. On March 17, 2005, Respondent entered a contract to purchase Lot P2 in Phase 1, and closed on the lot in October 2006. At the time of the January 9, 2007, and March 13, 2007, votes, 31 of the 109 lots in Phases 2 through 4 were under contract for sale to 26 persons or entities. These numbers do not include any transfers or assignments of contracts from the original purchase to a third party. On May 16, 2005, Respondent entered a contract to purchase Lot I1 in Phase 2, and closed on the lot in October 2007. Respondent testified, without contradiction, that all four of the votes at issue in this proceeding were on the LCC's consent agenda. The "consent agenda" consists of non- controversial items that are voted on as a group. Consent agenda items are those that require the approval of the LCC but need no discussion because they are not controversial. Consent items require unanimous consent of the LCC members. A single member may have an item removed from the consent agenda and placed on the regular agenda if he believes it merits discussion prior to voting. Respondent admitted that he failed to report the income related to his sale of the lot in Phase 1 on his 2007 CE Form 6, Full and Public Disclosure of Financial Interests. Respondent's gain from the sale was $55,000.15/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a public report finding: That the evidence presented at the public hearing in this case was insufficient to establish clearly and convincingly that Respondent's votes on July 11, 2006, November 14, 2006, January 9, 2007, and March 13, 2007, inured to his special private gain or loss in violation of section 112.3143(3)(a); That the evidence presented at the public hearing in this case was insufficient to establish clearly and convincingly that Respondent's votes on January 9, 2007, and March 13, 2007, inured to the special private gain or loss of a principal by whom Respondent was retained or to the special private gain or loss of the parent corporation or subsidiary of a corporate principal by which Respondent was retained in violation of section 112.3143(3)(a); That the evidence presented at the public hearing in this case was insufficient to establish clearly and convincingly that Respondent violated article II, section 8 of the Florida Constitution by failing to disclose a secondary source of income received in 2007 on his 2007 CE Form 6, Full and Public Disclosure of Financial Interests; and That the evidence presented at the public hearing in this case established clearly and convincingly that Respondent violated article II, section 8 of the Florida Constitution by failing to disclose income received in 2007 on his 2007 CE Form 6, Full and Public Disclosure of Financial Interests, and that such violation merits a civil penalty of $1,000. DONE AND ENTERED this 11th day of August, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 August, 2011.
The Issue The issue is whether Respondent violated Section 112.313(6), Florida Statutes, by misusing her position as a Town Councilperson to obtain a personal benefit, and if so, what is the appropriate penalty.
Findings Of Fact Pursuant to Article II, Section 8, Florida Constitution, and Section 112.320, Florida Statutes, the Commission is empowered to serve as the guardian of the standards of conduct for the officers and employees of the state. Pursuant to Sections 112.324 and 112.317, Florida Statutes, the Commission is empowered to conduct investigations and to issue a Final Order and Public Report, recommending penalties for violations of the Code of Ethics for Public Officers and Employees (Code of Ethics). Ms. Jones is subject to the Code of Ethics. She was first elected to the Town Council of the Town of Pierson, Florida, in 1990, and she served four two-year terms. She served from 1990 to 1994 and then from 1998 until her term ended September 30, 2002. Ms. Jones also sat on county zoning boards for eight or nine years and was on the City Zoning Board prior to being elected to the Town Council. She is knowledgeable with regard to the process of zoning. Pierson, Florida, is a town of about 3400 people. It is known for the production of ornamental ferns. The Pierson Town Council has the power, through adoption of ordinances, to change the zoning of parcels of land within the Town of Pierson. Prior to 1992, this was accomplished by maintaining a file of city ordinances affecting zoning. There was no zoning map. In 1994, a zoning map, printed on a vellum-like medium, was produced. This map, which will hereinafter be referred to as the "official zoning map," actually consisted of three separate sheets. It was precise and accurate in its depiction of the location of individual parcels and roads and streets. However, the lines denoting zoning were crudely drawn with a grease pencil. In 1999, it was believed it lacked completeness in that changes made by ordinance had not been entered upon it. The "official zoning map" of the Town of Pierson was maintained by the Town Clerk. The Town Clerk's duties included maintaining personal control of the map. The Town Clerk, as a matter of policy, would not permit the map to leave the clerk's office unless accompanied by the Town Clerk. The map was locked in a safe in the clerk's office except when it was being viewed by someone in the presence of the clerk. This policy was in place in order to deter the possibility that someone might surreptitiously alter the map. Robert Allen Keeth (Mr. Keeth), is employed as a planner for the Volusia County Metropolitan Planning Organization (MPO). The Town of Pierson contributes to the cost of the operation of the MPO, and receives services from it. As a planner for the MPO, Mr. Keeth works with the Town of Pierson and he has done so since at least the early 1990's. In accomplishing these duties, he works with the Town Council; the town attorney, Noah McKinnon; the Planning Commission; and other citizens of Pierson. He has known Ms. Jones since the early 1990's. With substantial input from Mr. Keeth, the Town of Pierson adopted a comprehensive land use plan, entitled the Unified Land Development Regulations (ULDR). The Town Council adopted the ULDR on February 22, 1994. Since its adoption, the ULDR provides a regulatory scheme for storm water management, resource protection, signs, and zoning, among other things. The ULDR also provides a method for amending the zoning scheme. Section 10.6.1 provides for the application process; Section 10.6.2 provides for Planning Commission review and for a public hearing; Section 10.6.3 provides for a Town Council review and a public hearing after due public notice; and Section 10.6.4 provides that amendments to zoning must be made consistent with the comprehensive plan by amending the plan if necessary to achieve that goal. The fee for amending a zoning classification of a parcel of land, during times pertinent, was set at $150. By 1995, digitalized mapping became commonplace and Mr. Keeth suggested to the Town Council, during 1995, that the official zoning map of the Town of Pierson be replaced with a digital map. The council agreed that a digital map should be prepared and adopted. The council did not immediately act on this decision. It was probable that there would be some changes in connection with the adoption of the digitalized map. This was because the "official town map" then in use was crudely drawn and might not be completely accurate in some respects and because ordinances had been passed affecting zoning which were not reflected on the "official zoning map." Moreover, when one changes an original map to a digital map it is unlikely to scale correctly or align correctly. The process of preparing a digitalized map is not designed to bypass the processes set forth in Sections 10.6.1 through 10.6.4 of the ULDR. The creation of a new map through digitalization was described by Mr. Keeth as "replacing a map." "Replacing a map" is a form of administrative rezoning. Administrative rezoning occurs when, after notice and hearing, an authorized governmental body changes the zoning of a parcel of property without receipt of an application from the owner. Section 166.041, Florida Statutes, addresses administrative rezoning. On or about November 25, 1998, Mr. Keeth prepared a written proposal to the Town Council with regard to creating a digital zoning map. Shortly thereafter, subsequent to approval by the Town Council, Mr. Keeth began preparing a new zoning map for the Town of Pierson. It was Mr. Keeth's understanding that Samuel Bennett, Chairman of the Town Council, would work with him in preparing the new map. Mr. Keeth and Ms. Jones had discussions with regard to the process involved with producing an accurate digitalized map. It was understood that it was possible that zoning changes might be affected which were not supported by any ordinance. This would not occur, in Mr. Keeth's opinion, until after public workshops and hearings. Ms. Jones, during times pertinent, owned a parcel of property in the northeast quadrant of the Town of Pierson on Minshew Road. This property was zoned A-1 (agriculture). It was a ten-acre parcel and the sole improvement was a packing shed. The packing shed occupied a small part of the ten acre parcel. Ms. Jones, during times pertinent, also owned a fence company in DeLand, Florida. She determined that she could reduce operational costs with regard to the fence company by moving the fencing materials associated with the business to the parcel on Minshew Road. Ms. Jones was paying rent in excess of $1,600 per month to store the materials in DeLand. In order to store the materials on the Minshew road property it was necessary to change the zoning classification of the parcel to B-1 (general retail commercial development). Mr. Keeth and Ms. Jones discussed the Minshew Road parcel and Ms. Jones revealed that she wanted to change the designation to B-1 (general retail commercial development), or to B-2 (heavy commercial and industrial development) or in any event, to a designation which, in Mr. Keeth's opinion, would allow the storage of fencing materials on the property. Mr. Keeth said that it would be permissible for her to pencil in the change she desired. She penciled in this change on the "official zoning map" in March or April in 1999. The pencil change was accomplished immediately subsequent to a meeting of the Town Council. The suggestion for change accomplished by Ms. Jones was not made surreptitiously. Ms. Jones told Mr. Keeth that she did not want it to appear that she was getting any special favors because of her position. Mr. Keeth told her he did not see a problem with the change and told her she could, "Pencil it in on the map," referring to the "official zoning map." By May 7, 1999, Mr. Keeth had prepared an initial draft map and on that date he sent a memorandum to the Pierson Town Council suggesting they review the initial draft map at Town Hall and forward comments to him by May 21, 1999. This map cannot be located. Another was created prior to November 29, 1999, which bore the date "November 29, 1999." On this map, Ms. Jones' parcel was labeled B-2 (heavy commercial and industrial development) rather than the B-1 which had been entered in pencil by Ms. Jones. The only other person to make pencil marks on the map was Samuel Bennett, who was also a town councilperson. Mr. Keeth considered these marks to be "suggestions" rather than changes. Mr. Keeth knew of no formal process, nor was the council aware of any formal process, for converting the "official zoning map" to a digital map. However, it is clear that Mr. Keeth believed that public workshops would be convened as part of the process and he believed that the Town Council would have to approve the final draft by ordinance. That he was correct in that belief is evidenced by the process which eventually resulted in the adoption of a final map on September 12, 2000, using that process. There were several draft maps produced during the period November 1999 through the winter and spring of 2000, but the drafts were not numbered or dated. As many as six draft maps were produced some of which never left Mr. Keeth's office. The maps were stored in the hard drive of his computer. On some drafts the words "Ordinance number ## , Jan ## , 2000" appeared. Changing a zoning classification from agriculture to business use does not automatically mean that the market value of the property is enhanced. However, because people do not ordinarily act contrary to their economic interest, it is found that the zoning suggestion made by Ms. Jones, would have represented value to her had the change been made. Moreover, as noted above, the suggestion, had it resulted in a change in zoning, would have allowed Ms. Jones to store materials at no cost instead of the $1,600 per month she was paying to store them in DeLand. Many citizens of the Town of Pierson eventually learned of the penciled changes. As a result, rumor and innuendo with regard to the changes coursed through the community. During this period, Ms. Jones confronted Deborah LeBlanc, the Town Clerk, and accused her of being insubordinate and stated that, "Your memory doesn't have to be so good." This indicates that Ms. Jones was aware that she should not have made the marks on the map. On April 14, 2000, Ms. Jones asked Mr. Keeth to remove her pencil marks and asked that the zoning for the Minshew Road property remain as it was before the "replacing a map" process was initiated. As late as the July 11, 2000, Town Council meeting, the Minshew Road change was still displayed on the draft. By late June or early July 2000, citizens were vigorously complaining to the Town Clerk and others about the Jones and Bennett changes. The issue became one of wide-spread interest in Pierson. In early July, Mr. Keeth concluded that the matter was getting out of hand. On July 10, 2000, in a memorandum to the Town Council, he noted that there was a perception that the map was being amended without full disclosure and review. Amendments were made on the draft maps as the result of other citizens making suggestions to Mr. Keeth. These amendments affected the Community Christian Assembly, Lois Taylor, Wilsey Bennett, and Shane Crosby. These suggestions were discussed at the July 11, 2000, Town Council meeting. In the case of Wilsey Bennett the changes were made to conform to an existing use. In the case of the Community Christian Assembly, the property was subject to a special exception. Neither the Town Council, nor the unhappy and vocal citizens present at the council meeting of July 11, 2002, indicated that there was any question about the propriety of these changes. There is no evidence in the record as to the circumstances of the amendments in the case of Taylor or Crosby. It cannot be determined if these amendments resulted in substantial changes or whether they were made to reflect existing uses or to indicate prior changes which should have been previously placed on the "official zoning map." By whatever process used, the changes were not made by merely penciling in the change and neither the Town Council, nor the unhappy and vocal citizens attending the council meeting of July 11, 2002, indicated that there was any question about the propriety of these changes. At a Town Council meeting on July 13, 2000, it was decided that Mr. Keeth would work with the Town Clerk to prepare another zoning map which represented the current state of zoning. This was to be done by looking at town records and the "official zoning map," without reference to the pencil marks entered with regard to Ms. Jones' or Mr. Bennett's property, and without reference to any other suggestions for change. At a Town Council meeting on September 12, 2000, it was affirmatively decided that the digitalized zoning map would be accepted which reflected only changes supported by properly prepared ordinances. A final draft was approved by Ordinance Number 00-03.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order and public report be entered finding that Respondent, Bonnie A. Jones, violated Subsection 112.313(6) Florida Statutes. It is further recommended that the Commission recommend that she receive a reprimand. DONE AND ENTERED this 7th day of January, 2003, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 January, 2003. COPIES FURNISHED: Basyle J. Tchividjian, Esquire 145 East Rich Avenue DeLand, Florida 32720 James H. Peterson, III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Kaye Starling, Agency Clerk Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Box 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Box 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Esquire Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Bonnie J. Williams, Executive Director Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Box 15709 Tallahassee, Florida 32317-5709
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 An ethics complaint was filed against Petitoner, Eli Tourgeman (Tourgeman) alleging that Tourgeman, as Mayor of the Town of Surfside, violated Chapter 112, Florida Statutes. Respondent, the Florida Commission on Ethics (Commission), found probable cause to believe that Tourgeman did violate Section 112.313(6), Florida Statutes. A formal hearing was held by the Division of Administrative Hearings. Tourgeman hired Richard Waserstein to represent him in the administrative proceedings. The Commission issued a Final Order and Public Report on July 20, 1994, Complaint No. 91-73 and Final Order No. COE 94-28, finding that Tourgeman did not violate Section 112.313(6), Florida Statutes, and dismissing the complaint. Tourgeman filed a Petition for Award of Costs and Attorneys Fees. In the petition, he alleged that he was on the Town of Surfside City Commission for six years and during the last four years he served as Vice Mayor and Mayor of the Town of Surfside. He also alleged that he is a banker employed by Glendale Federal as a Branch Manager and Vice President. Mr. Waserstein spent 52.75 hours in representing Tourgeman in the case at a rate of $150 per hour. The total cost for legal services was $7,912.50. The costs incurred by Tourgeman was $1,934, which included costs for depositions, transcripts, and travel to attend the Commission meeting in Tallahassee.
