The Issue Whether Respondent violated Section 112.313(7)(a), Florida Statutes, "by having a contractual relationship with an individual engaged in a lawsuit involving the Town" and, if so, what is the appropriate penalty.
Findings Of Fact Based on the evidence adduced at the public hearing and the record as a whole, including the parties' Joint Prehearing Stipulation, the following findings of fact are made: Respondent is a retired executive of W.R. Grace and Company. He is now, and has been since February 2002, a member of the Ocean Ridge Town Commission (Town Commission), the "legislative and policy making body" of the Town of Ocean Ridge, Florida (Town). Among the duties and responsibilities of the Town Commission is to determine, based on what is "in the best interests of the Town," whether the Town should litigate to resolve a dispute in which it is involved or whether it instead should seek a settlement and, if so, "on what terms." Before making any such determination in a particular case, the Town Commissioners have the opportunity to discuss the matter with the Ocean Ridge Town Attorney, Kenneth Spillias, Esquire, of the law firm of Lewis, Longman & Walker, P.A. Mr. Spillias has been the permanent Ocean Ridge Town Attorney since October 1999. He and his firm are compensated by the Town on an hourly basis. Respondent has been a resident of the Town since the early 1990's. His residence, which he and his wife own, is located at 5 Osprey Court (Lot Number 0050) in Ocean Shore Estates, a residential development in the Town. The northern half of Lot Number 0050 (also referred to herein as the "Schulte Property") is bordered on the east by Lot Number 0002, the "land-locked piece of property" referenced in the "Statement of Positions" portion of the parties' Joint Prehearing Stipulation. Other lots abutting this "land-locked piece of property" are: to the north (from west to east)- Lot Number 0160, which has a street address of 566 David Lane and is owned by Cheryl Olanoff, a part-time school teacher; Lot Number 0140, which has a street address of 5691 David Lane and is owned by Robert Katz; and Lot Number 0120, which has a street address of 18 Adams Road and is owned by Randy Allen; to the east (from north to south)- Lot Number 0110, which has a street address of 7 Beachway North and is owned by David Pollay; Lot Number 0100, which has a street address of 5 Beachway North and is owned by Richard Lucibella; and Lot Number 0090, which has a street address of 3 Beachway North and is owned by William and Anita Finley; to the south (from east to west)- Lot Number 0120, which has a street address of 207 Beachway Drive and is owned by Frederic Rose; and Lot Number 0080, which has a street address of 205 Beachway Drive and is owned by George Elder and his wife, Jo Ann Engelhardt; and to the west, in addition to the Schulte Property- Lot Number 0040, which is located immediately to the north of the Schulte Property, has a street address of 7 Osprey Court, and is owned by Joseph Park. Lot Number 0160 (owned by Ms. Olanoff) and Lot Number 0140 (owned by Mr. Katz) front on, and are separated by, the southern half of David Lane, a north-south roadway, which extends from Adams Road on the north to Lot Number 0002 (owned by the Kelsos) on the south (where it dead-ends). Another north-south roadway in the Ocean Shore Estates development is Beachway North, a private roadway owned by the Beachway North Association that is paved and at least 20 feet wide. It runs parallel to, but does not "directly touch," the eastern boundary of Lot Number 0002. "There is a few feet of grass between [Lot Number 0002] and [Beachway North]." This property separating Lot Number 0002 and Beachway North is privately owned. In 1991, at or around the time Respondent and his wife purchased Lot Number 0050, they inquired about the possibility of also purchasing Lot Number 0002, then-owned by the National Wildlife Federation (Federation), which was (and still is) an undeveloped, vacant lot zoned (like the other lots surrounding it in the development) for single-family residential use. During his discussions with the Federation, Respondent gave "assurances that, if [the Federation] would sell the property to [him,] [he] would restrict it from ever being developed." Respondent's interest in Lot Number 0002 stemmed from his belief that its development could, under certain circumstances, negatively impact the value of his neighboring property. The Federation declined Respondent's offer, but advised him that if the property were ever to be placed on the market, Respondent "would certainly be given a shot at it." Mr. Lucibella, the owner of Lot Number 0100, was also interested in purchasing Lot Number 0002 from the Federation. In December 1999, the Federation sold Lot 0002 to Town residents Betty Kelso and her husband, Scott Kelso, much to the displeasure of Respondent, who had not even been given an opportunity to bid on the property. In November 1999, after the sales contract had been signed, but before the closing, Betty Kelso went around the Ocean Shore Estates development to introduce herself. Respondent was among those she met. During her conversation with Respondent, she told him that she and her husband had entered into a contract to purchase Lot 0002 and they intended to "build a single-family home for [themselves]" on the lot. Respondent, although "cordial" throughout the conversation, was "visibly upset" when Mrs. Kelso told him of her and her husband's plans for the lot. The Kelsos' ability to develop the property in accordance with their plans was dependent on there being sufficient access to the property (measured against the access requirements set forth in the Town's Land Development Code). The Kelsos were aware, before they purchased the property, that "there [might] be an access problem from information given to [them] at the Town Hall." They made a pre- purchase attempt to obtain from the Town Commission a variance from the Land Development Code's access requirements, but the Town Commission declined to grant their request on the ground that they did not have standing to ask for such a variance since they did not yet own the property. After learning of the Kelsos' purchase of Lot 0002 and their intentions to build on it, Respondent and other property owners in the Ocean Shore Estates development "banded together" in an effort to thwart the Kelsos' plans. In January 2000, Respondent, Mr. Lucibella, Mr. Katz, and Ms. Olanoff signed (as clients) a Retainer Agreement, agreeing to pay the law firm of Sweetapple, Broeker & Varkas (Sweetapple Firm) for legal services "in the matter of THE KELSO PURCHASE OF NATIONAL WILDLIFE PROPERTY." The group's objective was to prevent the Kelsos from gaining access to Lot 0002 from the north via David Lane. In the group's Retainer Agreement with the Sweetapple Firm, Respondent was designated as the "spokesman" for all of the client signatories. Because of her financial situation, Ms. Olanoff initially did not contribute at all to the payment of the bills for legal services provided under the agreement. After a period of time, however, she started paying 10 percent of each bill, with Respondent, Mr. Lucibella, and Mr. Katz paying 30 percent each. On June 8, 2000, other Ocean Shore Estates property owners, Mr. Rose, Mr. Elder, and Ms. Engelhardt, also entered into a Retainer Agreement with the Sweetapple Firm to receive legal services "in the matter of THE KELSO PURCHASE OF NATIONAL WILDLIFE PROPERTY." The focus of their concern was the Kelsos' gaining access to Lot 0002 from the south. Paragraph J. of their Retainer Agreement with the Sweetapple Firm provided as follows: The clients acknowledge that the attorneys are already representing Bernd A. Schulte and Richard Lucibella in this matter. The clients agree that Bernd A. Schulte will be their spokesman.[1] Further, the strategy employed by the attorneys during the course of the representation must be approved by a majority of the clients. Shortly after this second Retainer Agreement was entered into, a determination was made that it would be best that the group trying to prevent the Kelsos from gaining access to Lot 0002 from the north (Northern Access Group) not be represented by the same law firm as the group attempting to stop the Kelsos from accessing Lot 0002 from the south (Southern Access Group). The Northern Access Group therefore terminated its relationship with the Sweetapple Firm and retained the services of the law firm of FitzGerald, Hawkins, Mayan & Cook, P. A. (FitzGerald Firm), with Respondent, Mr. Lucibella, and Mr. Katz each paying 30 percent of the cost of these legal services and Ms. Olanoff paying the remaining 10 percent. The issue of the Kelsos' entitlement to access to Lot 0002 was raised in Palm Beach Circuit Court Case No. CL 00-3364 AN. Case No. CL 00-3364 AN began when Ms. Olanoff filed a complaint against the Kelsos, alleging that the Kelsos had trespassed on her property.2 The Kelsos responded by filing a counterclaim against Ms. Olanoff and third party complaints against the Town, Mr. Katz, Mr. Elder, Ms. Engelhardt, Mr. Rose, Coral Gables Federal Savings and Loan Association, and Merrill Lynch Credit Corporation, claiming that they (the Kelsos) were entitled to access to Lot 0002 via David Lane or, in the alternative, from the south. In response to the Kelsos' third party complaint against it, the Town, through Mr. Spillias, on or about June 23, 2000, filed an Answer, Affirmative Defenses, Counterclaim and Crossclaim in Case No. CL 00-3364 AN. The Towns' counterclaim and crossclaim read as follows: The Town, by Counterclaim sues the KELSOS, and by Crossclaim sues CHERYL H. OLANOFF ("OLANOFF") and ROBERT KATZ ("KATZ"), and alleges: COUNT I DECLARATORY RELIEF (All Parties) This is an action for declaratory relief pursuant to Chapter 86, Florida Statutes, and is within the jurisdiction of this Court. The acts and properties at issue occurred or are located in Palm Beach County, Florida. The KELSOS, as set forth in their action against the Town, assert they enjoy an easement over OLANOFF'S property for road right-of-way purposes and that it is the Town's responsibility to enforce the KELSOS' right to use that easement. The Town is in doubt regarding its rights and responsibilities pursuant to the deeds from which OLANOFF deraigned her title to the subject property both with respect to the existence of an easement for the general public or, more specifically, for the KELSOS and, should such an easement exist, with respect to the Town's obligation to enforce such an easement against OLANOFF. Given the demands of the KELSOS with respect to the OLANOFF property, the Town is entitled to have its doubt regarding its rights and responsibilities removed by declaration of this Court. As further set forth in the KELSOS' action against the Town, specifically in paragraphs 12 and 13 thereto, a quitclaim deed was executed July 21, 1966, by Edith G. Henry and James Henry, predecessors in title to KATZ, conveying to the Town the eastern half of David Lane lying adjacent to lots 13 and 14 of the non-recorded plat at Ocean Shore Estates for the specific stated purpose of creating, among other things, a road right-of-way. A copy of said deed is attached hereto as Exhibit "A." There presently exist obstructions on the ten foot right-of-way deeded to the Town in the form of a patio, curbing and trees emanating from the adjoining property owned by KATZ and either placed and/or maintained thereon by KATZ. Despite demand by the Town that KATZ remove the obstructions located on the right-of-way, KATZ has refused to do so asserting that he has a superior right of ownership to the ten foot right-of-way to the Town. The Town is in doubt about its rights under the deed and, particularly given the KELSOS' demand for access to the right-of- way, is entitled to have such doubt removed by this Court. WHEREFORE, the Town respectfully requests that this Court issue a declaratory judgment declaring the Town's rights and responsibilities under the deeds deraigning title of those portions of David Lane adjoining or located on the property or properties of OLANOFF, KATZ and the KELSOS, awarding the Town its costs and providing such other and further relief as this Court deems just and proper. COUNT II INDEMNIFICATION (Olanoff and Katz) The Town reasserts and readopts the allegations contained in paragraphs one (1) through nine (9) above as if fully set forth herein. This is an action for additional and supplemental relief pursuant to Chapter 86, Florida Statutes. In their action against the Town, the KELSOS seek damages for their fees and costs in bringing their action for declaratory relief and for requiring KATZ to remove the obstructions from the right-of-way adjoining his property. Any liability for the Town for damages to the KELSOS would be derivative based on OLANOFF'S and/or KATZ'S refusal to allow access and/or remove obstacles to access over the easement and right-of-way at issue. The Town is entitled to indemnification from OLANOFF and/or KATZ to the extent that it is found liable in damages due to OLANOFF'S and/or KATZ'S actions in this cause. WHEREFORE, the Town demands judgment against OLANOFF and KATZ for damages by way of indemnification, including its reasonable attorney's fees and costs, as well as such other and further relief as this Court deems just and proper. Ms. Olanoff and Mr. Katz, through the FitzGerald Firm, filed the following response to the Town's Crossclaim against them: The Cross-Defendants, ROBERT F. KATZ ("KATZ") and CHERYL H. OLANOFF ("Olanoff"), in answer to the Cross-Claim of the TOWN OF OCEAN RIDGE ("the TOWN"), state as follows: Admitted that this is an action for declaratory relief, which comes within the jurisdiction of this Court. Otherwise, denied. Admitted. The pleadings of KELSOS speak for themselves. To the extent that the TOWN's description is inconsistent with those pleadings, the TOWN's assertions are denied. Without knowledge as to the TOWN's doubt and therefore denied. Specifically denied as to the existence of easements and the TOWN's obligations to enforce same. Denied. Without knowledge and therefore denied. KATZ denies this paragraph; OLANOFF is without knowledge and therefore denies same. KATZ admits that he possesses a superior right of ownership; otherwise, he denies this paragraph. OLANOFF is without knowledge and therefore denies same. Denied. The responses of KATZ and OLANOFF to Paragraphs 1-9 are hereby readopted and reaverred. Admitted that the Town requests such relief; denied that such relief is appropriate. The pleadings of KELSOS speak for themselves. To the extent that the TOWN's description is inconsistent with those pleadings, the TOWN's assertions are denied. Denied. Denied. WHEREFORE, Cross-Defendants KATZ and OLANOFF demand that Cross-Plaintiff the TOWN go hence without day. MOTION TO STRIKE PRAYER FOR ATTORNEY'S FEES Cross-Defendants, KATZ and OLANOFF, move this Court to strike the TOWN's prayer for attorney's fees, and as grounds therefore states that the TOWN has failed to allege a legal basis for the recovery of fees. AFFIRMATIVE DEFENSES For a first affirmative defense, KATZ and OLANOFF state that the TOWN is not entitled to indemnification because it is not without fault and its liability, if any, to KELSOS is not solely vicarious. For a second affirmative defense, KATZ and OLANOFF state that the TOWN is not entitled to indemnification because KATZ and OLANOFF are not at fault. For a third affirmative defense, KATZ and OLANOFF state that the TOWN is not entitled to the declaratory relief which it seeks because it has failed to include all persons who have or might claim any interest in the issues it has presented to this Court. For a fourth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to an easement by right because David Lane is not a public, but a private right-of-way, and any easements are for the benefit of residents of David Lane and the non-recorded plat of Ocean Shore Estates. For a fifth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to an easement by right because the "Quit- Claim Deed" was recorded in order to provide access for the residents of David Lane and/or the non-recorded plat of Ocean Shore Estates, and was not intended to create a right-of-way for the general public. For a sixth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to an easement by right because no easements were ever granted to them, or their predecessors in interest. For a seventh affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to an easement by right because the TOWN has never accepted any easement on David Lane. For an eighth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to an easement by right because the TOWN is estopped from asserting access on David Lane by its conduct which includes, inter alia, public statements that access is limited to residents of Ocean Shore Estates, and its insistence that Olanoff pay for maintenance and repairs to David Lane. For a ninth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to an easement by right because the TOWN has abandoned any right of access it may wish to assert on David Lane. For a tenth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to an easement by right because any claims of access over Lot 14 are barred by the doctrine of adverse possession. For an eleventh affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to an easement by right because any claims of access over David Lane are barred by the doctrine of "balancing equities." For a twelfth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to a statutory easement by necessity because this property is located within a municipality. For a thirteenth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to a statutory easement by necessity because David Lane is not the nearest practicable route to the nearest practicable road. For a fourteenth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to a statutory easement by necessity because there is no necessity for access over David Lane, as the KELSOS have a right to access over other properties. For a fifteenth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to a statutory easement by necessity because there is no necessity for access over David Lane because the KELSOS have implied (common law) easement by necessity over other properties. For a sixteenth affirmative defense, KATZ and OLANOFF state that claims of access by the public and the parties to this action are barred by the Marketable Records Title Act. For a seventeenth affirmative defense, KATZ and OLANOFF state that neither the public nor the parties to this action are entitled to any of the relief of which they are seeking including, but not limited to, injunctive relief, mandatory or prohibitive, because the granting of such relief would be inequitable for a variety of reasons including, but not limited to, the following: KELSOS knew, before closing, that they did not have clear access to the property and, nevertheless, elected to purchase the property; KELSOS recognized, before, closing, that the purchase price was substantially below its actual market value,[3] and knew that its fair market value would increase substantially if they could obtain access to the property; The granting of an easement over David Lane would enhance the value of the KELSO property and, at the same time, impair the market value of the KATZ and OLANOFF properties, leaving KELSOS unjustly enriched; and The relief requested would unfairly diminish the ability of KATZ and OLANOFF to enjoy the use of their homes. For a[n] eighteenth affirmative defense, KATZ and OLANOFF state that the TOWN's requests for relief are barred by the doctrine of "balancing equities." For a nineteenth affirmative defense, KATZ and OLANOFF state that the TOWN's requests for relief are barred by the doctrine that "he who seeks equity must do equity." For a twentieth affirmative defense, KATZ and OLANOFF state that the TOWN's requests for relief are barred by the doctrine of "unclean hands." For a twenty-first affirmative defense, KATZ and OLANOFF state that they are entitled to compensation for any servitude, easement, use or other restraint placed upon their property. WHEREFORE, ROBERT F. KATZ and CHERYL H. OLANOFF request the dismissal of the TOWN's claims against them, attorney's fees pursuant to 57.105, Florida Statutes, costs, and such other relief as this Court deems proper. Efforts to amicably resolve the dispute were made prior to Respondent's election to the Town Commission, but they were unsuccessful and the litigation therefore continued. Although he was not a named party in the case, Respondent played a significant and visible role in these settlement efforts. Mr. Lucibella also participated. There came a point in time when, upon learning that Ms. Olanoff and Mr. Katz were contemplating "suing the Town for flooding damage which had nothing to do with the Kelsos," Respondent and Mr. Lucibella "pulled out" of their agreement to help pay for the legal services the FitzGerald Firm was providing Ms. Olanoff and Mr. Katz in Case No. CL 00-3364 AN, leaving Ms. Olanoff and Mr. Katz to "split[] that bill 50-50." The trial in Case No. CL 00-3364 AN was scheduled to commence the first week of March 2002. Prior to the scheduled commencement of the trial, the parties engaged in further settlement negotiations. Mr. Spillias was given "the authority to at least enter into [settlement discussions, on behalf of the Town] and submit any proposed settlement agreement to the [Town] Commission." It was "very clear" to Mr. Spillias, based on what he had been told by the "the various commissioners" with whom he had discussed the matter [Respondent not being one of them], that it was "their greatest desire to have this case settled, particularly among the adversarial residents," and that "they did not want to go to trial." Settlement negotiations this time produced a proposed settlement agreement. On March 2, 2002, Steven Mayans, Esquire, of the FitzGerald Firm (representing Ms. Olanoff and Mr. Katz) sent the following letter by facsimile transmission to Linda Conahan, Esquire, of the law firm of Gunster, Yoakley & Stewart (representing the Kelsos) and Mr. Spillias (representing the Town): This letter confirms the parties' settlement of the above referenced case [Olanoff v. Kelso, et al, Case No. CL 00-3364 AN] between Cheryl Olanoff ("Olanoff"), Robert Katz ("Katz"), J. A. Scott Kelso and Betty Kelso (collectively "Kelsos"), and the Town of Ocean Ridge ("Town") on the following terms and conditions: Kelsos shall convey by quit claim deed to Olanoff twenty-five feet (25') of property immediately south of Olanoff's property line, but excluding from said property the westerly 10 feet (10') of David Lane as shown on the plat of Beachway North as recorded at Plat Book 45 Page 74 of the Public Records of Palm Beach County, Florida, and twenty five feet (25') immediately south therefrom. Kelsos shall convey by quit claim deed to Katz twenty-five feet (25') of property immediately to the south of Katz's existing property line. Katz shall grant back to Kelsos an easement for right of way and utility purposes in perpetuity over said twenty-five feet (25'); however, the granting of such easement shall in no way inhibit Katz's ability to expand or add on to his existing structure. 2a. In addition, Kelsos shall convey by quit claim deed to Katz 25 feet (25') immediately to the south of the existing 20 foot (20') right of way designated as David Lane on the Plat of Beachway North as recorded at Plat Book 45 Page 74 of the Public Records of Palm Beach County, Florida. Katz shall simultaneously grant to Kelsos and Olanoff an easement for right of way and utility purposes in perpetuity over said twenty-five feet (25'). The Kelsos agree to maintain this 20' x 25' right of way. Kelsos shall pay Olanoff $50,000, payable $25,000.00 upon final settlement (approval by all parties and the Town Commission) and $25,000.00 in installments of $2,000 each month for 11 months with a final installment of $3,000 in the 12th month. Olanoff shall grant to Kelsos a ten foot (10') easement in perpetuity for right of way and utilities along the east portion of her property (west side of David Lane). Katz and Town confirm Kelsos' right to access along the ten feet (10') to the west of his property (existing east side of David Lane), or, if necessary, Katz grants Kelsos a ten feet (10') easement in perpetuity for right of way and utilities to the west of his property (existing east side of David Lane). By virtue of the agreements herein, the Town declares the public access along the ten feet (10') of Katz's property (existing east side of David Lane) as unneeded surplus property and agrees to abandon it as well as the ten eastern feet (10') of Olanoff's property (existing west side of David Lane). For all intents and purposes, the resulting easements will result in a private road for Katz, Olanoff, Kelsos, and their successors and assigns. Counsel for the Town agrees to expedite the abandonment process. Katz guarantees that should the Town abandon the public right of way over the ten feet (10') west of his property (existing east side of David Lane) then Katz grants to Kelsos a ten foot (10') easement in perpetuity for right of way and utilities. The parties agree that the existing trees upon a portion of the east side of David Lane shall be maintained. Olanoff grants Kelsos an additional easement in perpetuity for right of way and utilities over an additional portion of her property, such as would allow a reconfiguration of the Kelsos' twenty-foot (20') easement around the Katz's trees and front porch. Town recognizes, or if need be, approves, the reconfigured twenty foot (20') easement for right of way and utilities purposes. Kelsos agree that heavy construction vehicles will not use the easement on weekends. Kelsos agree to be responsible for any damages or required improvements to the roadway or Katz and Olanoff's properties resulting from construction, improvements or construction vehicles on the Kelsos' property. Kelsos agree that the development of their property shall be designed in such a way as not to worsen the drainage problem for Katz or Olanoff. Town acknowledges that the twenty foot (20') easement as provided for above is sufficient and adequate access for approval by the Town for a building permit based upon the plans previously submitted to Town by Kelsos. Subject to air conditioning approval and Paragraph 13 regarding access, Town acknowledges that the Kelsos' plans previously submitted to Town will be approved by Town and forwarded to the County Building Department for issuance of a building permit. Town acknowledges that the road right of way across and for access through Kelsos' property will not reduce the calculation of "buildable acreage" pursuant to Town's Code of Ordinances for land development code purposes. Town acknowledges that Kelsos' property is properly zoned for the potential of being subdivided into two (2) buildable lots, subject to compliance with all Town, County, and State building land development regulations. If Kelsos in the future subdivide and sell a part of their property, they agree to give Olanoff and Katz a right of first refusal to purchase said property on the same terms and conditions available to a third party. Kelsos agree to allow Olanoff, her successors and assigns in perpetuity, when needed, overflow parking for a maximum of five cars just south of her property. Parking for additional cars needs permission of the landowner. All parties shall bear their own attorney's fees and costs of litigation.[4] All claims raised in the pending litigation as between Kelsos, Olanoff, Katz, and Town shall be dismissed with prejudice upon final approval of this agreement. Nothing contained herein shall be viewed as a waiver by the Town of any present or future building, land development or other regulations as they may apply to the properties owned by Olanoff, Katz and the Kelsos, and as may be owned by their successors and assigns, except as specifically provided for herein. Notwithstanding the execution of this agreement, if the Kelsos discover that the access to their property contemplated by the parties herein is deemed insufficient by any governing agency for the issuance of building permits, the agreement and all of its provisions shall be null and void. Notwithstanding the execution of this agreement by counsel for the Town, this agreement is subject to approval by Town Commission of the Town of Ocean Ridge. Should the Town Commission fail or refuse to approve this agreement, the agreement and all of its provisions shall be null and void. Counsel for the Town shall endeavor to convene a special meeting of the Town Commission within one week of execution of this agreement for the purpose of obtaining final approval. However, final Town approval must be obtained within three weeks of execution of this agreement or the agreement and all of its provisions shall be null and void. It is the intention of the parties hereto that all easements and rights granted appurtenant thereto shall inure to the parties successors, heirs and assigns in perpetuity. The parties further agree to execute such additional document as shall be necessary to put the agreements hereto into effect and to record all conveyances and easements in the public records. If I have accurately set forth the parties' agreement in this matter, please sign where indicated for presentation to Judge Rapp on Monday morning asking that the trial be rolled to his next calendar to allow time for the Town's approval. Thank you. Sometime prior to the scheduled March 4, 2002, commencement of the trial in Case No. CL 00-3364 AN, Mr. Katz, Ms. Olanoff, the Kelsos, Mr. Spillias, Ms. Conahan, and E. Cole FitzGerald, III, Esquire, of the FitzGerald Firm signed "where indicated," signifying that they were of the view that, in the letter, Mr. Mayans had "accurately set forth the parties' agreement in this matter." The morning of March 4, 2002, the judge in Case No. CL 00-3364 AN, upon being advised by the parties that the they "had a potential settlement agreement that had to be presented to the Town Commission for its approval," continued the trial that was set to begin that day. At the regular Town Commission meeting held later that same day (March 4, 2002), the Town Commission was briefed on the developments in Case No. CL 00-3364 AN. The minutes of that meeting read, in pertinent part, as follows: 8b. Kelso litigation and Special Town Commission Meeting By: Kenneth Spillias, Town Attorney Atty Spillias explained that the trial had been scheduled to begin earlier this day, but that through extensive negotiations in the past three weeks an agreement had been signed dependent upon Town Commission approval. He stated that the Town would be asked to abandon 10' which is currently in dispute between Robert Katz and the Town. He suggested that a Special Town Commission meeting be set up this week to answer questions and discuss the settlement. He stated that he would be suggesting a few minor revisions, but the substance of the agreement would remain the same. He stated that it would take a public hearing to approve the abandonment by the Town. The Town Commission concurred to have the Special Meeting at 8:00 A.M. on Thursday, March 7th. Rich Lucibella, 7 Beachway N, stated that he would like to comment on the agreement to which Atty Spillias stated that he should comment at the Special Meeting since the Town Commission has not yet had a chance to review the proposed agreement. Mr. Lucibella stated that Atty Spillias has characterized that the agreement only includes the Town giving up a 10' portion of the right-of-way, but that there are other items in the agreement which will need to be discussed. Atty Spillias stated that he did not advise that the Town's only concession would be a 10' portion of a right-of-way to Mr. Katz. Atty Spillias advised that Comm Schulte would be declaring a conflict on this issue. Mr. Spillias had spoken with Respondent some time after Respondent's election to the Town Commission (and before the March 4, 2002, Town Commission meeting) about "whether [Respondent] should vote on issues involving the Kelso property and the Kelso litigation." During their discussion, Mr. Spillias "explained to [Respondent] the conflict of interest rule." Respondent, in turn, informed Mr. Spillias that he felt he had "an interest in the outcome of the [Kelso] litigation because what did or didn't happen on that property would have an impact on [Respondent's] property" and that he therefore "would abstain from voting" given what Mr. Spillias had told him about the "conflict of interest rule." The special Town Commission meeting to discuss and consider the proposed settlement agreement was held on March 7, 2002, as scheduled. As the minutes of the meeting reflect, "[p]rior to any discussion, [Respondent] declared a conflict and stepped off the dais" and the Town Clerk "advised that she would have a Voter Conflict form prepared for his signature." Among those who spoke at the meeting were Mr. Spillias, Mr. FitzGerald, Ms. Conahan, Ms. Olanoff, Mr. Lucibella, Mr. Finley, and Norman Malinski, Respondent's counsel of record in the instant case. In his comments to the Town Commission, according to the minutes of the meeting: Atty Spillias summarized the events leading up to this litigation and the settlement agreement distributed to the Commission on March 4, 2002 along with his proposed modifications . . . . He concluded by recommending approval of the agreement with his modifications and the reconfiguration drawing submitted by . . . Mr. and Mrs. Kelso showing the new boundaries and the 20' access. He stated that [t]his has been a long and torturous litigation. He added that he feared that if the Town continued to be caught in the middle between neighbors the case would go to trial and whoever lost would appeal and costs above the $60,000 would occur. * * * Atty Spillias commented that the suits involving George Elder and Ann Engelhardt would be dismissed if the agreement is executed. * * * . . . . Atty Spillias suggested reformatting the agreement so that it separates what the Town agrees to follow and what the parties agree to with each other. Atty FitzGerald and Atty Conahan agreed so long as the terms remain the same. . . . The minutes of the meeting indicate the following regarding the action taken by the Town Commission: Comm Aaskov moved to approve the settlement agreement subject to the modifications suggested by the Town Attorney, and the new format to be approved by the Town Commission, with the most recent reconfigured drawing, and that the advertisement for the hearing for the abandonment be scheduled for the regular meeting to be held April 1, 2002. Comm Bingham seconded the motion. Mayor Kaleel clarified that the Kelsos would investigate the possibility of constructing some sort of turn-around for the Public Safety Dept. Motion carried -- Yea 4 (Schulte abstain). Respondent did not "want the [proposed] settlement agreement [to be approved] because it would grant access to the Kelso property." Moreover, he "also thought it would violate the Town Code." He did not publicly air these views at the meeting, however. Following the meeting, Respondent signed the "Voter Conflict form" that the Town Clerk had prepared for him. Typed on the form was the following description of the "measure before [Respondent's] agency and the nature of [his] conflicting interest in the measure": A discussion regarding the settlement of a lawsuit in which I was involved in the mediation process and of which the ultimate result may [a]ffect my property value. Although she signed the proposed settlement agreement and even personally negotiated some of its terms, Ms. Olanoff was "never really ever happy with it." She "thought that [she] was getting [a] raw deal," but nonetheless agreed to the "deal" because of the "pressure" she was under (due, primarily, to her "lack of money to continue to pay" the costs of litigating). Before signing the agreement, she had contacted Respondent, telling him that she did "not want to do this" and asking him for his financial help. Respondent, however, had declined to provide her with any assistance. Some time after the proposed settlement agreement had been signed, Ms. Olanoff "bumped into" Mr. Lucibella on the street and talked about the possibility of Mr. Lucibella's and Respondent's providing her with the funds she needed to continue to litigate against the Kelsos should the proposed settlement agreement expire without being finally approved by the Town Commission. Mr. Malinski, on behalf of Respondent and Mr. Lucibella, drafted a proposed agreement providing for Ms. Olanoff to receive such financial assistance from Respondent and Mr. Lucibella. On or about March 18, 2002, Mr. Malinski sent, by facsimile transmission, an unsigned copy of the proposed agreement he had drafted to Ms. Olanoff's then-attorney, Mr. FitzGerald, for Mr. FitzGerald's review and consideration. The proposed agreement "contained a condition that [Mr. FitzGerald] hide this agreement" from Mr. Katz, the Town, and the Kelsos. Mr. FitzGerald thought that the proposed agreement "was illegal for many, many different reasons" and that "[i]t would be unethical for [him] to even counsel [Ms. Olanoff] about this document." He decided that, under the circumstances, he and his firm should no longer represent either Ms. Olanoff or Mr. Katz and he took action to effectuate such a withdrawal. Shortly thereafter Edward Marod filed a Notice of Appearance as counsel of record for Ms. Olanoff in Case No. CL 00-3364 AN. On March 25, 2002, Respondent, Mr. Lucibella, and Ms. Olanoff entered into an Agreement and Option Agreement,5 which read, in pertinent part, as follows: WHEREAS, there are currently pending in the Palm Beach County Circuit Court several related lawsuits (hereinafter "the Litigation") including an action captioned Cheryl H. Olanoff v. J. A. Scott Kelso, Palm Beach County Circuit Court Case No. CL 00- 3363 AN, wherein J. A. Scott Kelso and Betty Kelso are seeing access to certain property they own in Palm Beach County, Florida; and WHEREAS, Olanoff, as an abutting owner to the Kelso property[,] is a Defendant in this action, that Kelso[]s seeking to acquire their access by crossing over a portion of the property owned by Olanoff; and WHEREAS, there are a number of property owners abutting the Kelso[]s['] property, some of whom are Defendants to the above described action and some of whom are interested parties by virtue of being abutting property owners; and WHEREAS, Olanoff and several other parties to the above described litigation have entered into a Settlement Agreement (hereinafter the "Settlement Agreement") dated March 2, 2002 . . . ; and WHEREAS, the Settlement Agreement specifically provides that it shall be null and void in the event final approval of it[]s elements is not obtained from the Town of Ocean Ridge within three (3) weeks) of its execution, that is, by March 23, 2002 if execution is deemed to be March 2, 2002, the date of the letter, or March 25, 2002 if execution is deemed to be March 4, 2002, the date the last party affixed his or her signature; and WHEREAS, the Settlement Agreement, at this time, is an executory agreement with regard to Olanoff, in that she has received none of the performance promised for her participation in the Settlement Agreement as of this date; and WHEREAS, in addition to being an executory agreement at this time, Olanoff desires to exercise her right to withdraw from the Settlement Agreement in the event final approval is not secured from the Town of Ocean Ridge by March 25, 2002; and WHEREAS, Optionors desire to acquire property rights in the Olanoff property, including an option to purchase same and the right to both defend and, as appropriate, settle the above described litigation with respect to access sought over the Olanoff property. NOW AND THEREFORE, in consideration of the payment of TEN DOLLARS ($10.00) and other good, valuable and sufficient consideration, which other consideration is further identified herein, the Optionors and Olanoff hereby covenant and agree as follows: Incorporation by Reference: The parties agree that all of the recitations contained in the Whereas provisions are true and accurately express the intentions of the parties to this Agreement. Withdrawal from March 2, 2002, Settlement Agreement: Olanoff agrees, when permitted to so under the terms of the Settlement Agreement, to furnish to all other signatories of the Settlement Agreement, written notice of her withdrawal from it. Such notice shall be in the form of a written communication by counsel for Olanoff to counsel for all parties who have executed the Settlement Agreement, such communication being made by telecopier after 5:00 P.M. on March 25, 2002 and by First Class Mail. Thereafter, Olanoff shall not enter into any further agreement with respect to her property or the settlement of litigation without the express written consent of Optionors. Grant of Option: For a period of five (5) years from the date of this Agreement, or for a period ending ninety (90) days after the full execution and performance of any settlement of the Litigation, or for a period ending upon the sale of the Optioned Property pursuant to the terms of this Agreement, whichever is a shorter period of time, Olanoff grants to Optionors an option to purchase her property, located at 566 David Lane, Town of Ocean Ridge, Palm Beach County, Florida, . . . . * * * Conduct of Litigation: [T]he Optionors shall, immediately upon execution of this Agreement, assume all obligations for conduct of the litigation described as Cheryl H. Olanoff v. J.A. Scott Kelso and Betty Kelso, Palm Beach County Circuit Court Case No. CL 00-3364 AN. Such obligations shall include, without limitation, the obligation to reimburse Olanoff for all attorney's fees and costs paid in such litigation, together with the obligation of paying all attorney's fees and costs to be incurred in such litigation; the obligation of determining counsel for Olanoff in this litigation. Optionors will undertake all efforts necessary to secure an outcome to this litigation which will result in the Olanoff property not being utilized as access to the Kelso property. in the event the Kelsos either are or appear to be approaching success in securing access over the Olanoff property, the Optionors will utilize their best efforts to fashion alternatives by way of additional litigation or settlement which will result in the Olanoff property not being utilized to furnish access to the Kelso[]s['] property. Optionors will utilize best efforts to maintain the vegetation and green barrier between the Olanoff and Katz properties, such obligation including the obligation to replace any foliage and vegetation which may be removed as a result of the pending litigation. Obligations of Olanoff: As additional undertakings on the part of Olanoff, Olanoff agrees to: execute all documents necessary to formalize the Option Agreement granted herein, or a memorandum thereof, in order that same may be suitable for recording in the Public Records of Palm Beach County, Florida. until such time as Optionors acquire title to the Optioned Property, or until the Optioned Property is otherwise sold as authorized by this Agreement, permit the pending litigation, and any ancillary proceedings resulting from this litigation, to be conducted in her name, the name of her estate, the name of her heirs, or in the event she is incapacitated, the name of her legal guardian, subject to the discretion and control of Optionors[.] vigorously pursue all available sources of insurance coverage and reimbursement relating to her being a defendant in this litigation, including homeowner's and title insurance. With respect to any sums recovered as defense costs from any insurance, Optionors agree to accept two- thirds (2/3) of any such payment as reimbursement for their defense costs paid on behalf of Olanoff, permitting Olanoff to retain one-third (1/3) of any such sums recovered. maintain the negotiation, execution and existence of this Agreement confidential. The withdrawal from the March 2, 2002, Agreement is a material and significant consideration for the payments being made by the Optionors herein, and disclosure of this Agreement may affect the Town's actions in complying with its undertakings, thereby substantially and adversely affecting the property interests which the Optionors are acquiring herein and their property interests as abutting owners and such adverse affect is not readily subject to precise damage determination. Therefore, neither Optionors nor Olanoff may disclose the substance or existence of this Agreement to anyone other than their respective counsel, except as otherwise ordered by a court of competent jurisdiction. Obligations of Optionors: As additional obligations, the Optionors shall: advance Olanoff the sum of $10,000.00 in consideration of her entering into this Agreement. This sum of $10,000.00 is hereby allocated as a $7500.00 payment towards the obligations for defense fess and costs described above, as well as a total payment of $2500.00 for the option granted herein. However, all payments and undertakings by the Optionors herein shall be deemed as nonseverable consideration for all undertakings by Olanoff herein. Olanoff hereby acknowledges receipt of this $10,000.00. immediately undertake to determine and satisfy the outstanding balance due to Olanoff's counsel for her defense in the pending litigation, together with arranging for counsel for continuing representation. Amendments. No provisions of this Agreement may be amended or altered unless such amendment or alteration shall be in writing signed by all signatories to this Agreement. The Town Commission's not having taken final action on the proposed agreement to settle Case No. CL 00-3364 AN, Ms. Olanoff's new attorney, Mr. Marod, on March 26, 2002, sent, by facsimile transmission and United States Mail, to Mr. Spillias, Ms. Conahan, and Mr. FitzGerald the following letter: This letter is to inform you the deadline for completion of performance of the terms of the settlement agreement set forth in the correspondence from Steven Mayans dated March 2, 2002, between my client, Cheryl Olanoff, and Mr. Katz, Mr. and Mrs. Kelso and the Town of Ocean Ridge has now expired. Without limiting the generality of the foregoing, the requirements of the second sentence of paragraph 24 have not been met. Therefore, pursuant to its terms, the March 2, 2002 settlement agreement and all of its provisions are now null and void. Ms. Olanoff no longer wishes to settle. Please let me know how you wish to proceed to having the case re-scheduled for trial. Before sending this letter, Mr. Marod conferred with Respondent about the matter. At its regular meeting on April 1, 2002, the Town Commission was scheduled to consider a resolution "[e]videncing its intent to vacate and abandon its interest in any and all public right of way lying between Lot 14 and Lot 16 of the unrecorded plat of Ocean Shore Estates," as called for in the proposed settlement agreement. As the minutes of the meeting reflect, after the title of the resolution was read, "Comm Schulte declared that he had a conflict with this issue and moved down from the dais" and "Town Clerk Hancsak [then] advised that she would prepare a voter's conflict form for his signature." The minutes of the meeting further reflect that, thereafter, the following occurred at the meeting: Atty Spillias advised that the purpose of the resolution was the last step for a settlement in which the Town had agreed to abandon a 10' portion of Town right-of-way adjacent to Mr. Katz'[s] property and the public easement, if it exists, on David Lane on the land privately owned by Olanoff. He added that he had received a letter from Katz/Olanoff's attorney that he would no longer be representing them. He stated that Mr. Katz has not retained new representation as of yet, but Mrs. Olanoff had. Mrs. Olanoff's new attorney has taken the position that since the deadline for final approval of the agreement had passed, the agreement was null and void. Atty Spillias disagreed with this and sent documents to support the Town's position that it is an enforceable agreement, but it would go to trial on April 8th as previously planned. He explained that the Town could file a motion to enforce which would necessitate more litigation and suggested that the Town let the court decide and file a suit against Olanoff in the future for breach of contract, if the Town desires. Atty Spillias suggested that the resolution be tabled in case the agreement is found to be enforceable. He added that if the resolution is tabled, the public discussion must be limited to the tabling of the resolution and not the merits of the resolution. Atty Spillias concluded that although he does believe the agreement to be enforceable, he suggests that the Town go ahead with the court hearing on April 8th. Mayor Kaleel agreed adding that the Town would need to reserve [its] rights. Comm Aaskov moved to table Resolution No. 2002-08, seconded by Comm Bingham. * * * Roll call was taken on Comm Aaskov's motion. Motion carried-yea 3 (Schulte abstain). The minutes of the meeting further indicate that, during the public discussion on the motion to table the resolution, in response to comments made by Mr. Lucibella critical of the Town Commission's actions in connection with the Kelso litigation: Atty Spillias advised that at a mediation a year ago which involved Mr. Lucibella, Mr. Schulte and Mr. Rose, the Town put forth a significant effort to bring this issue to a resolution and even offered to put a significant amount of money into purchasing the property in a manner that would have resolved issues for everyone,[6] but they were not able to come to a final resolution. He added that the Town has not sued anyone except Mr. Katz to vacate the 10' of Town owned property. He stated that there is not a direct lawsuit against Mrs. Olanoff, but only a request of the court to clarify the Town's interest in her 10' easement. The Town was put in this position due a demand made upon the Town to make its right-of-way available to a property owner. He stated that although it sounds like the Town has spent a lot of money, under these circumstances the Town has been made to defend itself. He explained that this settlement agreement was intended to settle these differences between neighbors and now a Judge will be made to decide the outcome. Following the meeting, Respondent signed the Memorandum of Voting Conflict form that the Town Clerk had prepared for him. Typed on the form was the following description of the "measure before [Respondent's] agency and the nature of [his] conflicting interest in the measure": A discussion regarding the settlement of a lawsuit in which I was involved in the mediation process and of which the ultimate result may [a]ffect my property value. As Mr. Spillias had indicated would be the case, a judge did "decide the outcome" of the dispute concerning access to Lot 0002 on the merits (there having been no attempt made by the Town or any other party to the litigation to argue that the matter had been resolved by settlement). On June 13, 2002, Palm Beach County Circuit Court Judge Stephen Rapp rendered a Final Judgment of Declaratory Decree in Case No. CL 00-3364 AN, which provided as follows: THIS CAUSE came before the court for a Non- Jury Trial on June 10, 2002. Upon consideration of testimony of witnesses, evidence presented and arguments of counsel the Court makes the following findings of fact and conclusions of law: The Court finds that David Lane as depicted on the January 26, 2000 survey by O'Brien, Suiter & O'Brien, Inc., a copy of which is attached hereto and incorporated herein by reference and as set forth in the non-recorded plat of Ocean Shore Estates prepared by George S. Brockway, Engineer, for John H. Adams, Trustee, under said Engineer's File No. TMA-1017 and filed in the Palm Beach County Tax Assessor's Office as Assessor's Map #71, is a full 20 foot public right of way available for ingress and egress and all other lawful uses as such by the public. The Court further finds that there is a public right of way easement over the eastern 10 feet of Cheryl Olanoff's property more particularly described as follows . . . . The Court further finds that the remainder of David Lane as described above is owned by the Town of Ocean Ridge in fee simple. For the foregoing reasons, it is therefore ORDERED AND ADJUDGED as follows: The Kelsos are entitled to access their property pursuant to the 20 foot wide public right of way which is commonly known as David Lane and which is depicted as stated above. The Town of Ocean Ridge has a duty to clear and maintain that portion of David Lane deeded to them by Katz. Due to the configuration of the road and surrounding properties the town, as a condition of issuance of a building permit perhaps, might be authorized to require the Kelso[s] to dedicate a portion of their property for use as a public turn around to accommodate public service trucks e.g., street sweepers and the like. Due to the fact that the Kelsos are entitled to legal access to their property over David Lane, the Kelsos do not have a common law way of necessity over Rose, Elder or Engelhardt's properties. This Court retains jurisdiction to determine further supplemental relief to this declaratory decree, to consider an application for fees and costs and to enter such further orders and relief as may be necessary to enforce this Judgment. Ms. Olanoff appealed Judge Rapp's Final Judgment of Declaratory Decree to the Fourth District Court of Appeal. The judgment was affirmed, per curiam, on March 19, 2003. The Fourth District's mandate issued on May 9, 2003. The Town incurred legal expenses as a result of its participation in the litigation before Judge Rapp and the Fourth District. Although he was not at any time a party to the litigation, Respondent, along with Mr. Lucibella, pursuant to the Agreement and Option Agreement, "took control of [the conduct of] litigation for Ms. Olanoff" from March 25, 2002, onward at the trial and appellate level. Respondent did not "think that it was any of the Town's business to know about this option agreement" and he therefore did not "tell about the option agreement" and its contents (consistent with the last sentence of paragraph 5(d) of the agreement).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a public report finding the evidence presented at the public hearing in this case insufficient to clearly and convincingly establish that Respondent "violated Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with an individual engaged in a lawsuit involving the Town" and dismissing the complaint filed against Respondent. DONE AND ENTERED this 11th day of January 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 2005.
The Issue The issue in this case is whether the Respondent is guilty of using or attempting to use his position as mayor of the City of South Pasadena for his benefit or the benefit of candidates that he supported in the 2014 city commission election, in violation of section 112.313(6), Florida Statutes (2013).
Findings Of Fact In March 2014, the Respondent was the mayor of the City of South Pasadena, having been elected the year before. City commission elections were scheduled for Tuesday, March 11. There were two contested slots. The incumbents were Max Elson and Arthur Penny. The challengers were Harris Blair and Robert Small. The Respondent supported the challengers and donated to their campaigns to unseat the incumbents, who had been voting against the Respondent's positions since his election as mayor. Of the two elections, the Respondent was more interested in unseating Penny, who regularly opposed the mayor. Pasadena Liquors is a retail business operating in the City of South Pasadena. It was operated by Jimmy Valenty, whose family trust owned the business. Although not a resident and not eligible to vote in the city commission elections, Valenty supported Elson, who was a personal friend. A few weeks before the election, Elson mentioned to Valenty that the campaign signs Valenty allowed him to place outside Pasadena Liquors kept disappearing. Elson asked if Valenty would let him use the marquee inside the front window. Valenty agreed. Elson then asked if Valenty also would let Penny use it. Valenty had no personal interest in Penny's campaign but agreed to his friend's request. Valenty arranged the letters on the marquee to read: "VOTE ELSON AND PENNY CITY COMMISSIONER." During the week before the election, the Respondent received telephone calls regarding the marquee from several constituents who were supporting Blair and Small. They did not recall the marquee being used to solicit votes for city commission elections in the past and questioned whether it was legal. The Respondent was not aware of the sign before receiving the telephone calls and told his constituents that he would look into it. On Friday, March 7, the Respondent went to Pasadena Liquors to talk to Valenty and tell him about the telephone calls he had received. Valenty asked if the Respondent was there as mayor, and the Respondent said, no, he was there as a concerned customer or concerned citizen. During the discussion about the propriety and legality of the sign, Valenty asked to see the city's sign ordinance. The Respondent offered to get a copy of it for Valenty. Normally, the mayor would not be involved in enforcement of the city's sign ordinance. The city's government is run by the mayor and five commissioners, all elected positions. The city has five departments. The mayor oversees the administration department. Each commissioner oversees one of the other four departments. Code enforcement, which includes enforcement of the sign ordinance, is part of the community improvement department (CID). Code violations usually would come to the attention of the city through either a code enforcement inspection or a citizen complaint, which would be referred to code enforcement for investigation. It was the CID director's job to interpret, as necessary, the ordinances being enforced. His interpretation would stand unless the city commission overruled him. In March 2014, Commissioner Elson was in charge of and oversaw the CID. The CID's director, Neal Schwartz, reported directly to Commissioner Elson. After talking to Valenty, the Respondent went to Schwartz's office, told him about his conversation with Valenty, and asked for a copy of the sign ordinance pertaining to the Pasadena Liquors marquee. Schwartz copied the sign ordinance, which was long and convoluted, and highlighted the pertinent provisions. It was the CID director's opinion that the sign was legal, in part because the marquee was a "reader board" with changeable letters. The CID director offered to check with the county election supervisor to verify his opinion and was told that the city clerk, who directed the administration department overseen by the Respondent, was in charge of city elections. It was not clear from the evidence whether the Respondent was still present in the office of the CID director when he telephoned the county elections supervisor. It was clear that the Respondent had left the CID director's office before the CID director talked to the city clerk. When the clerk was asked, she was of the opinion that the sign was legal because it was not paid political advertising. She was prepared to tell the Respondent her opinion if he contacted her. The Respondent did not contact the city clerk for her opinion. After meeting with the CID director, the Respondent returned to Pasadena Liquors to show Valenty the sign ordinance. Valenty saw nothing in the highlighted portions of the sign ordinance that made it clear to him that the sign was illegal, but there appeared to him to be a size limitation. Valenty got a tape measure and concluded that the sign exceeded the size requirements. Valenty asked if the Respondent was requiring him to remove the signage from the marquee. The Respondent said no, it was up to Valenty to decide what to do with the sign. Valenty was planning to remove the sign the next day anyway to replace it with advertising for St. Patrick's Day, so he decided to go ahead and switch the signage on the marquee that day. At the election on March 11, the incumbents won. After information was reported to him about the Respondent's actions regarding the Pasadena Liquors marquee, Commissioner Penny swore out an Ethics Commission complaint alleging that the Respondent went to Pasadena Liquors and demanded that the owner remove the "vote-for-the-incumbents" sign by falsely telling him that he was in violation of the political advertisement laws, after insisting that the CID director call the supervisor of elections and not waiting for the opinion of the city clerk as to the sign's legality. After receiving and reading the ethics complaint, the Respondent brought a copy to Valenty because his name was mentioned, and the Respondent thought he should know about it. Valenty read it and said there was nothing negative in it about him, so he was not concerned about it. The Respondent did not try to influence Valenty's reaction to the complaint, and there was no evidence that there was anything else to this encounter. A few months later, the Respondent asked the city clerk to begin the process of recognizing the lounge at Pasadena Liquors for being open for 25 years and to be sure to say that it was at his request. When the city clerk broached the subject with Valenty, he declined the honor because the timing suggested to him that the recognition was to "make up for" any hard feelings that arose from the issue regarding the business's election sign. In fact, the timing was a coincidence. The city had recognized Pasadena Liquors for the 10th anniversary of its lounge being open, and other businesses in the city were recognized similarly when they reached landmark anniversaries. It was not proven by clear and convincing evidence that the Respondent's actions with respect to the Pasadena Liquors marquee were taken for the purpose of influencing the election, and it is unlikely that they had any influence on the election. In part for these reasons, it was not proven by clear and convincing evidence that the Respondent's actions with respect to the Pasadena Liquors marquee were taken for the purpose of securing a special privilege, benefit, or exemption for himself or the unsuccessful candidates. It also was not proven by clear and convincing evidence that the Respondent's actions with respect to the Pasadena Liquors marquee were taken with corrupt intent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Ethics Commission enter a final order dismissing the charges against the Respondent. DONE AND ENTERED this 12th day of May, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 12th day of May, 2015. COPIES FURNISHED: Virlindia Doss, Executive Director 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) Millie Wells Fulford, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Joseph A. Corsmeier, Esquire Law Office of Joseph A. Corsmeier, P.A. Building B, Suite 431 2454 McMullen Booth Road Clearwater, Florida 33759-1339 (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)
The Issue The issue is whether Respondent violated section 112.3143(3)(a), Florida Statutes (2009), by voting on a December 9, 2009, motion on whether to investigate his actions, and if so, what is an appropriate penalty.
Findings Of Fact At all times pertinent to these proceedings, Respondent served as a member of the Deltona City Commission (City Commission). 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 as a member of the City Commission. Background On August 18, 2008, the City Commission approved a multi-million dollar Land Purchase Contract by which the City of Deltona (the City) was to acquire property from Howland Crossings, LLC. Respondent was an opponent of the purchase of the property by the City from Howland Crossings, LLC. As a condition for closing on the property, Howland Crossings was obligated to obtain a permit from the St. Johns River Water Management District (SJRWMD). On November 29, 2009, Respondent filed a Petition for Administrative Hearing with the SJRWMD in opposition to the issuance of the permit. On December 8, 2009, the City Manager, Faith Miller, sent a memorandum to the Mayor and City Commissioners which addressed Ms. Miller's concern with Respondent having filed the Petition for Administrative Hearing related to the proposed purchase of the property. The Vote in Question Also on December 8, 2009, the City Mayor, Dennis Mulder, wrote a memo to Commission members informing them that he had decided to call a special meeting for the following day. The memo stated in its entirety: I've decided to call a Special Meeting for Wednesday, December 9, 2009 at 4:30 pm in the Commission Chambers regarding Commissioner Zischkau's petition with SJRWMD (St. Johns River Water Management District). Items for exclusive discussion will be: Potential Formal Request by Commission to have Commissioner Zischkau withdraw his petition with SJRWMD. Conflict letter received by City Manager regarding Mr. Fowler and solutions. Concerns regarding possible violations of the City of Deltona Charter and/or Florida laws of various nature, yet undefined, and possible processes that may be taken by the Commission. Thank you, Mayor Mulder Marsha Segal-George served in the capacity of acting City Attorney at the December 9, 2009, City Commission meeting at issue here. Ms. Segal-George has worked in local government for over 30 years, having served as a county attorney, county manager, city attorney, and city manager. According to Ms. Segal-George, it is customary to receive an agenda package prior to the commencement of a meeting of a public body to review in advance. She did not receive any materials to review prior to the December 9 meeting in question. Before the meeting commenced, Ms. Segal-George talked to the Mayor briefly to express her concerns and discomfort that she did not have any documents regarding the meeting, as it was her responsibility to advise the Commission and it "creates a very--kind of uncomfortable feeling for the lawyer, because we like to be prepared and we like to be able to advise our client." Documents were distributed by the mayor after the meeting started. These documents comprised three proposed motions under the heading "Potential Motions offered by the Mayor for special meeting of December 9, 2009." Item C, the motion at issue in this proceeding, reads as follows: I move that due to possible past, present and future conflict that the City Manager quickly hire an attorney or firm she feels is experienced enough, affordable and has not done work for the City in the past to assist this Commission thru (sic) her on helping to determine whether the actions of Commissioner Zischkau violated the City Charter, or any other laws or rules and, if applicable, any and all methods of resolution that are available to the City Commission. In addition, for the purity of this process and its results once this person or firm is hired, no Commissioner or the Mayor, or officer, permanent or acting, of the City, other than the City Manager, shall contact this attorney or firm. The results shall be released to the Commission as a body at one time for consideration. Ms. Segal-George was "shocked" by this motion, in that the city attorney had not been consulted with regards to these issues and "they were fairly serious issues . . . it is not the type of thing that you would put in the hands of a city manager. . . it would be something that the attorney . . . would be involved, and so I was shocked by it." When asked during her deposition if she had thought at that time that Respondent or anyone else had a conflict of interest regarding the vote, would she have interrupted and said something about it, she replied. "Yes, I would have. And I didn't." It continues to be Ms. Segal-George's opinion that Respondent did not have a conflict of interest when he voted on the motion at issue.1/ Respondent voted against the motion. However, the motion passed with a vote of 4-3. Prior to the vote, Commissioner Zischkau did not state publically to the assembly the nature of the vote or the nature of any potential interest he might have in the matter. The fact that this motion related to Commissioner Zischkau was abundantly clear from the wording of the motion itself to anyone reading it or hearing it read at the meeting. As a result of the passage of the motion, a law firm other than the one serving as City Attorney was hired by the City Commission to provide a legal opinion as to whether Respondent violated the City Charter and the provisions of the Ethics Code. The conclusion reached by this law firm was that Respondent's actions did not violate either the City Charter or the Ethics Code.2/ Randall Morris has served as a City Commissioner of the City of Lake Mary, Mayor of the City of Lake Mary, County Commissioner for Seminole County, Chairman of the Board of County Commissioners of Seminole County, and on numerous other public bodies. In his experience, receiving an agenda packet with proposed motions at the dais with no advance notice of what he would be receiving and what will be voted upon " . . . would be extraordinary, and in my experience, I've never experienced that." The weight of the evidence does not establish the allegation that Respondent's vote in question inured to his private gain or loss when he voted on the motion to retain counsel to investigate his actions regarding filing a petition with the SJRWMD relative to the purchase of land from Howland Crossings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED: That the Commission enter a final order finding that Respondent, Herbert S. Zischkau, did not violate section 112.3143(3)(a), Florida Statutes. DONE AND ENTERED this 8th day of February, 2012, in Tallahassee, Leon County, Florida. S Barbara J. Staros 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 February, 2012.
The Issue Whether Respondent violated the provisions of Section 104.051(2), Florida Statutes (2002), by willfully neglecting to perform her duties as alleged in the 55-count Order of Probable Cause and, if so, the penalties that should be imposed.1
Findings Of Fact THE PARTIES Petitioner is created by Section 106.24, Florida Statutes, and has the authority conferred upon it by the Florida Election Code. Respondent was elected as the Broward County SOE in November 2000. She was sworn into office in January 2001. Respondent was serving as the Broward County SOE for the 2002 Primary. Respondent was suspended from office by Governor Jeb Bush in November 2003. At the time of the final hearing in this proceeding, Respondent was not working, had little equity in any asset, and owed money to her attorneys and to various credit card companies. She was borrowing money from relatives to meet monthly expenses. BCSOE OFFICE At the time of the 2002 Primary, the Broward County SOE Office (BCSOE Office) had a main office in the Broward County Governmental Center (BCGC), six regional offices, and a facility referred to as the Voting Equipment Center (VEC). Respondent had her main office in the BCGC. The VEC was essentially a warehouse at which voting equipment and supplies were stored. The six regional offices were spread throughout Broward County. At the time of the 2002 Primary, there were more that 60 full- time employees of the BCSOE Office.3 Walter Foeman served as Respondent’s Deputy SOE for the 2002 Primary. Respondent replaced the employee who had served as the Deputy SOE for Respondent’s predecessor in office. Pat Nesbit served as chief of the Poll Worker’s Department. Ms. Nesbit had the responsibility of recruiting and training poll workers. Ms. Nesbit was a veteran employee of the BCSOE Office of approximately 12 years.4 Mr. Foeman was Ms. Nesbit’s direct supervisor. Barbara Adams was the chief financial officer for the BCSOE Office. Carol Hill was a director in the BCSOE office. Petitioner attempted to establish that Respondent’s management style and her hiring practices created dissension among the employees of the BCSOE Office so that it became a matter of us (the employees from Respondent’s predecessor in office) versus them (the new employees hired by Respondent). That attitude did exist to a degree within the office and was exacerbated by staff turnover, including supervisors who had served Respondent’s predecessor in office. However, Petitioner did not prove that the negative attitude within the office was a contributing factor to the 23 precincts opening late or the 32 precincts that failed to comply with Governor Bush’s Executive Order. As will be demonstrated below, Respondent’s management style of totally relying on staff contributed to the problems with the 2002 Primary that are at issue in this proceeding. PRE-ELECTION PLANNING The 2002 Primary represented a considerable challenge for Respondent, who was relatively inexperienced. As a result of legislative and congressional redistricting, the number of precincts in Broward County went from 619 for the 2000 election to 809 for the 2002 election. For the 2002 election there were approximately 500 polling places throughout the county.5 New touch-screen voting equipment was utilized for the first time in the primary election, which required training of staff and poll workers. That training was conducted. These voting machines replaced the infamous punch card ballots that had been used in the 2000 Presidential election. For the first time provisional ballots were utilized. A provisional ballot would be issued to an individual when his or her name could not be located in the precinct register. The provisional ballot would be counted only if it was subsequently verified that the voter was in the proper precinct. While the use of provisional ballots required training for poll workers, there was no evidence that the use of provisional ballots delayed the opening of any precincts or contributed to any precinct’s failure to comply with Governor Bush’s Executive Order. Each county is divided geographically into voting precincts. Each precinct has its own poll workers, including a precinct clerk and a deputy precinct clerk. For the 2002 Primary (809 precincts and approximately 500 polling places), Respondent’s staff determined that a total of 4,941 precinct poll workers were needed to conduct the election. Poll worker recruitment and training is an essential part of conducting an election. Ms. Nesbit and her department recruited experienced poll workers using a computer data base of poll workers who had worked prior elections and recruited new poll workers at community functions and from business, educational, and governmental entities. There was insufficient evidence to establish that there were too few poll workers recruited or that the poll workers were inadequately trained. The poll workers were provided appropriate checklists and appropriate instructions as to how and when to report for duty. To prepare for the 2002 Primary, weekly staff meetings were held to assess the BCSOE Office’s readiness for the election. On the Friday before the Tuesday election, Respondent met with all the managers in the office. Based on the reports that were provided, Respondent reasonably concluded that the office was ready for the election. The VEC is responsible for putting together a box of supplies that is referred to as the “gray box.” Included in the gray box are various signs, ballots, envelopes, and other supplies that are needed by the poll workers. The VEC is also responsible for placing additional voting materials into what is referred to as the precinct’s “blue bag”. The blue bag contains materials that are essential to the opening of the poll. Among other items, the blue bag contains the poll register (which is a list of the precinct’s eligible voters), the precinct’s Personal Electronic Ballots (which are necessary to activate the precinct’s voting machines), and a checklist (which the precinct clerks are to follow to make sure that the election is properly conducted). The precinct clerk is in charge of the precinct’s polling place the day of the election, but his or her official duties begin the day before election day. The VEC is responsible for arranging delivery of the voting equipment and the gray box to each precinct at its polling place prior to election day. A trucking company was hired for this purpose for the September 2002 primary election. The precinct clerk is responsible for visiting the polling place the day prior to the election to verify that the equipment and the gray box have been delivered. In the gray box is a white form that the precinct clerk is responsible for taking to the regional office when the clerk picks up the blue bag. The precinct clerk uses the form to verify that the correct number of voting machines and all required materials in the gray box have been delivered to the precinct’s polling place. The precinct clerk also verifies that he or she will be able to open the facility on election day. The VEC is responsible for delivering all blue bags to the appropriate regional site. The precinct clerk is responsible for going to the appropriate regional site to pick up the blue bag the day before the election. The precinct clerk must empty the contents of the blue bag while at the regional center and, using a checklist, verify in front of a regional office staff person that all items that are required to be in the blue bag have been included. If all items are present, the precinct clerk and a regional center staff worker sign the checklist and the precinct clerk keeps the bag until it is time to open the polls the next morning. Any item missing from the blue bag should be secured before the precinct clerk leaves the regional office or arrangements should be made to deliver the missing item(s) to the polling place the next morning in time for the precinct clerk to open the precinct for voting by 7:00 a.m. Pick up of the blue bags for the 2002 Primary was to be between 1:00 p.m. and 4:00 p.m. for one regional center and between 9:00 a.m. and 1:00 p.m. at the other regional centers on the day before the election. The precinct clerk is responsible for opening and closing the poll and for overseeing the vote while the poll is open. The assistant precinct clerk performs the clerk’s duties if the clerk is absent or unable to perform his or her duties. The assistant clerk also answers the phone, deals with the public, and generally assists in the conduct of the election. CANCELLATIONS BY PRECINCT CLERKS On Friday, September 6, 2002, Ms. Nesbit learned that some individuals who had agreed to serve as precinct clerks had subsequently declined to serve. Ms. Nesbit made reasonable efforts to replace the precinct clerks who she knew had cancelled as of that Friday. On the day before the 2002 Primary, Ms. Nesbit and her staff spent the day talking to various poll workers about various problems. Ms. Nesbit heard during the day from more than one precinct clerk that there were long waiting lines at the regional centers (up to two hours) and that some precinct clerks had become frustrated and had left without picking up the precinct’s blue bag from the precinct’s regional site. Ms. Nesbit received no communication from any regional site that blue bags were not being picked up by precinct clerks and she did not know that those blue bags were being returned to the VEC until approximately 9:00 p.m. that evening when Damian Robinson, an employee of the BCSOE Office’s outreach department, told her that approximately 50 blue bags had been returned to the VEC because the blue bag had not been picked up at the regional site by a precinct clerk. Mr. Robinson also told her that a fax had been sent to her with a list of the precincts whose blue bag had not been picked up and a list of the precincts whose blue bag was incomplete when it was picked up. Ms. Nesbit had been working all day in an area that was not close to the fax machine and was unaware that the fax had been sent. Ms. Nesbit retrieved the fax, which was not introduced as an exhibit. Ms. Nesbit testified that there were 30 to 35 precincts listed on the fax, but she did not remember the number of precincts on each list. By midnight, there were approximately 15 blue bags at the VEC that had not been picked up. The total number of incomplete bags that had been picked up was not established and it was not established what was missing from each bag. If an essential item, such as a poll register, was missing from a blue bag, the precinct clerk could not open the precinct’s polling place for voting until someone from the BCSOE Office delivered the missing item to the precinct’s polling place. Ms. Nesbit saw Mr. Foeman and Ms. Adams shortly after she saw Mr. Robinson and read the fax. Ms. Nesbit gave the information she had received to Mr. Foeman and Ms. Adams. Ms. Nesbit proposed to Ms. Adams and Mr. Foeman that sufficient staff of the BCSOE Office be called that night and be ordered to appear at the VEC the following morning at 5:00 a.m. for the purpose of delivering each undelivered bag and missing material to the appropriate precinct. Ms. Nesbit contemplated that poll workers (other than the missing precinct clerk) would be present at the polling place and that one of those workers could substitute as the precinct clerk. Ms. Adams informed Ms. Nesbit that they were not going to call BCSOE Office employees at that time of night. As she and Mr. Foeman turned and left Ms. Nesbit, Ms. Adams said to Mr. Foeman: “We’ll take care of this.” Ms. Nesbit received no further instructions from any of her supervisors that night. Respondent returned to her home at approximately 9:00 p.m. on the day before the 2002 Primary. When she left, she knew that some precinct clerks had cancelled, but she relied totally on Ms. Nesbit and four employees under Ms. Nesbit’s supervision, to resolve the problem. Shortly after Respondent returned home, Mr. Riley informed her by telephone that approximately 15 blue bags had been returned to the VEC and that a news reporter had contacted him about the matter. Respondent’s reaction was to try to contact a fellow SOE for advice. After several calls, Respondent spoke with Gertrude Walker, an experienced SOE from St. Lucie County, Florida. After Respondent told her about the undelivered blue bags, Ms. Walker told Respondent that she had a serious problem and that she should immediately make arrangements to have staff available to deliver the blue bags to the appropriate precinct and to make sure the precinct opened on time. The telephone call between Respondent and Ms. Walker occurred around midnight on the eve of the election. Ms. Walker specifically advised Respondent to wake staff up and have them ready for action the next morning. Respondent knew about the problems with the undelivered bags for almost three hours before she talked to Ms. Walker. Why Respondent felt the need to verify with another SOE that the undelivered blue bags constituted a serious problem was not clear. Why she did not follow Ms. Walker’s advice was also not clear.6 Instead, Respondent tried to contact Mr. Foeman at his office and at his home. When she could not reach him, she left a voice message ordering him to make sure that all precincts opened on time. There was no evidence that Respondent talked to Ms. Adams or Ms. Nesbit that evening. Ms. Adams called Linda Levinson, the BCSOE Office Assistant Director of Finance and Administration, at 4:00 a.m. the morning of the 2002 Primary and ordered her to report to the VEC immediately. Ms. Adams was Ms. Levinson’s direct supervisor. As will be discussed below, Ms. Levinson helped deliver blue bags to precincts that morning. POLLS MUST OPEN AT 7:00 A.M. Section 100.011(1), Florida Statutes, regulates the opening and closing times for polls as follows: The polls shall be open at the voting places at 7:00 a.m. on the day of the election, and shall be kept open until 7:00 p.m., of the same day, and the time shall be regulated by the customary time in standard use in the county seat of the locality. Respondent knew that polls had to be open at 7:00 a.m. on the day of the election. THE EXECUTIVE ORDER On September 10, 2002, Governor Bush entered the following Executive Order Number 02-248: WHEREAS, today, September 10, 2002, is the regularly-scheduled date for the conduct of primary elections throughout the state; and WHEREAS, the Secretary of State has reported to me that there have been substantial delays in the opening of certain polling places in Broward and Miami-Dade Counties; and WHEREAS, today’s election is the first time that many election officials will have had an opportunity to implement the major technological and procedural changes mandated by the recent wholesale revision of our state’s election code; and WHEREAS, under this unique combination of circumstances, there is a possibility that certain residents of our state could be deprived of a meaningful opportunity to vote and that certain election officials will be unable to conduct an orderly election; and WHEREAS, in light of the above-described conditions and in an abundance of caution, the Secretary of State has requested that I order that polling places throughout the state remain open for an additional two hours beyond their regularly-scheduled closing times; and WHEREAS, the Secretary of State has made the request after consultation with the Attorney General of Florida, the President of the Florida State Association of Supervisors of Elections, and the chairmen of the Florida Republican and Democratic parties; NOW, THEREFORE, I JEB BUSH, as Governor of Florida, by virtue of the authority vested in me by Article IV, Section 1(a) of the Florida Constitution, by the Florida Elections Emergency Act, and by all other applicable laws, do hereby promulgate the following Executive Order, to take immediate effect: I hereby declare that, based on the above- described conditions, a state of emergency exists. In order to ensure maximum citizen participation in the electoral process and to protect the integrity of the electoral process, for today’s election all polling places in the state shall remain open for two hours beyond their regularly scheduled closing times. FACTS DEEMED ADMITTED7 A total of 24 precincts in Broward County failed to open by 7:00 a.m. on September 10, 2002. In the list that follows, the precinct number is followed by the time that morning that precinct actually opened with the exception of precinct 5K, whose opening time was unknown. The following list contains 23 precincts, with each listed in the order in which it appears as a separate count in the Petitioner’s Order of Probable Cause. In addition to the precincts listed below, Precinct 13D opened five minutes late. Precinct 13D is not included in the following list because no count in Petitioner’s Order of Probable Cause was based on the failure of that precinct to open at 7:00 a.m. Precinct 50C (8:00 a.m.) Precinct 10D (7:30 a.m.) Precinct 11D (7:30 a.m.) Precinct 5E (7:20 a.m.) Precinct 7E (8:45 a.m.) Precinct 3F (8:30 a.m.) Precinct 5K (unknown) Precinct 15K (7:30 a.m.) Precinct 9M (9:15 a.m.) Precinct 31N (7:55 a.m.) Precinct 38N (7:55 a.m.) Precinct 10R (7:30 a.m.) Precinct 18V (10:00 a.m.) Precinct 23V (8:00 a.m.) Precinct 11W (10:00 a.m.) Precinct 21X (7:15 a.m.) Precinct 22X (9:00 a.m.) Precinct 23X (7:10 a.m.) Precinct 32X (12:20 p.m.) Precinct 37X (8:30 a.m.) Precinct 62X (11:00 a.m.) Precinct 63X (8:30 a.m.) Precinct 65X (11:00 a.m.) The following 32 Broward County precincts failed to comply with Executive Order Number 02-248 by failing to remain open for two hours beyond their regularly scheduled closing time of 7:00 p.m. on September 10, 2002: 13A, 17A, 19C, 22C, 24C, 21E, 1G, 3G, 6G, 11J, 19J, 24J, 15L, 16L, 27M, 38M, 40N, 51Q, 36R, 75R, 1T, 12T, 7U, 34V, 35V, 36V, 44V, 8W, 12Y, 14Y, 7Z, and 23J. These precincts are listed in the order they appear in Counts 24-55 of the Order of Probable Cause. In addition to the foregoing, the following facts were deemed admitted based on Respondent’s failure to respond to Petitioner’s First Request for Admissions: Thirteen precincts opened late due to a lack of election supplies and the remainder opened late due to a lack of personnel. Because of delays in opening the polls in Broward and one other county on September 10, 2002, Governor Bush issued Executive Order Number 02-248 requiring all polling places in the State of Florida to remain open for an additional two hours beyond their regularly-scheduled closing time or until 9:00 p.m. The Broward County SOE Office received Governor Bush’s Executive Order at 3:41 p.m. Miriam Oliphant instructed her staff not to say anything about the Executive Order until she gave further instructions. Respondent, upon receiving the Executive Order at 3:41 p.m., assigned Rick Riley, an independent contractor hired by the SOE’s Office, the task of writing a press release to the person in charge of each precinct. Mr. Riley made the final revisions to the press release at 4:49 p.m. after Walter Foeman completed his last review. It took from 3:41 p.m. until approximately 6:15 p.m. for Miriam Oliphant’s staff and volunteers to begin notifying the [809] precincts.[8] The following problems occurred at various precincts: 19 precincts could not run a zero tape 1 precinct had incorrect time precinct had incorrect date precinct locations were unable to select [political] parties 2 precincts did not have an ADA voting unit 4 precincts did not have a cellular phone 6 precincts did not have registers 23 precinct clerks did not pick up supplies 2 precincts did not receive communication package or activation card BLUE BAG DELIVERY The scene at the VEC was chaotic on the morning of the election with no one, including Respondent, taking charge or attempting to organize the bag delivery in a rational manner. Respondent testified that she panicked that morning because she was very angry with her staff, who she believed had let her down. Shortly before 6:00 a.m., Respondent ordered Mr. Foeman to get the blue bags and other materials delivered without giving further instructions and without devising a rational plan for such delivery. Ms. Levinson delivered three blue bags and opened three precincts in the Pembroke Pines area that morning. She was not instructed where to go and got lost. Ms. Levinson opened her last precinct around noon on the day of the election. Mr. Riley was recruited to deliver blue bags. He could not testify to how many he delivered, where he delivered them, or when he delivered them. He could not testify that the precincts to which he delivered opened by 7:00 a.m. Respondent delivered blue bags that morning. She was in a van with her driver, Mike Lindsay (a representative of the Department of State, Division of Elections), Respondent’s attorney, and Jimmy Davis (an employee of BCSOE Office outreach program). Respondent’s group did not deliver the last blue bag until shortly after noon on the day of the election. There was no evidence as to whether the other three blue bags were delivered in time for the precincts to open at 7:00 a.m. Respondent’s group had difficulty locating at least one precinct. Respondent could not testify whether her group had a map or accurate driving directions to each precinct. Michelle Feinberg was a precinct clerk for a precinct in Plantation for the 2002 Primary. When Ms. Feinberg picked up her precinct’s blue bag from the regional center the day before the election she inventoried the bag and discovered that it lacked essential voting material (including the precinct register). Staff at the regional center told her that the missing material would be delivered to her precinct in time for her to timely open the poll. That voting material was not delivered to the precinct on the morning of the election in time for the precinct to open by 7:00 a.m. The poll opened approximately 30 minutes late because the voting materials were not delivered on time. There was insufficient evidence to identify the other employees who delivered blue bags and other materials to the various precincts. Respondent knew shortly after 9:00 p.m. on September 9, 2002, that approximately 15 blue bags had not been picked up by the precinct clerk. She knew that the precinct could not open without the blue bag. She also should have suspected that each precinct clerk who failed to pick up the precinct’s blue bag would likely not show up for duty the next day. Respondent knew that she was mandated by statute to open all precincts for voting at 7:00 a.m. the next day. After learning of the problem with the blue bags, Respondent failed to take reasonable action either the evening before the election or the morning of the election to ensure that each blue bag and other required voting material would be delivered to the appropriate precinct. Likewise, she failed to take reasonable action either the evening before the election or the morning of the election to ensure that the precincts whose clerk had not picked up the precinct’s blue bag the day prior to the election would be staffed with a precinct clerk. FAILURE TO COMPLY WITH THE EXECUTIVE ORDER The BCSOE Office received Governor Bush’s Executive Order 02-248 at 3:41 p.m. on the day of the election. Respondent immediately instructed Mr. Riley to prepare a memorandum to the poll workers pertaining to the extended hours for the polls and basic instructions on how to close the polls. Respondent further instructed her staff not to call precincts until they had the memorandum. Mr. Riley made the last revision of the memorandum at 4:49 p.m. It was not until 6:04 p.m. that Respondent gave the memorandum to Ms. Nesbit and instructed her and assigned staff to read the memorandum to each precinct clerk. The following is the memorandum (Memorandum): Due to delays in the opening of certain polls, voting for the September 10, 2002, primary election has been extended by Governor Jeb Bush, for all polling locations throughout the State of Florida (pursuant to Executive Order 02-248), for an additional two hours beyond their regularly-scheduled closing time, from 7 pm till 9 pm. After 7 pm the following voting procedures will be in effect. When the Personal Electronic Ballots (PEB) is [sic] inserted, the herein below listed questions will appear: Close menu options, follow the sequence below. Close terminal Lock terminal Press no For each voter after 7 pm, and until 9 pm the poll worker that is activating the ballot shall press the box designated for no, and the ballot page will appear. Please due (sic) not press the close terminal until 9 pm. All terminals should be closed using the green master Personal Electronic Ballot (PEB) at 9 pm. Carol Hill and her staff were responsible for copying the Memorandum and for dividing the precincts into call lists. Each participating staff member was given a copy of the Memorandum and a list of precincts with telephone numbers to call. It took approximately ten minutes for Carol Hill’s staff to copy the memorandum and to make the calling assignments. Errors were made while making the calling assignments. Some of the precincts were on the calling lists more than once while other precincts were omitted. As a result, some precincts received two calls from staff while others received none. After approving the contents of the Memorandum, Respondent had no further involvement with advising the 809 precincts that the Governor had extended the voting day by two hours. Respondent did not participate in the actual calling of the precincts or in making the call assignments. Respondent testified that she did not know that some polls had closed at 7:00 p.m. until the next day. There was no rational explanation for the time that elapsed from the time the BCSOE Office received the Executive Order (3:41 p.m.) until the time staff began contacting poll workers (6:15 p.m.). Respondent knew that she was responsible for ensuring that all precincts complied with the Executive Order. Respondent abdicated that responsibility to her staff without providing any oversight. Petitioner established that some of the 32 precincts that failed to comply with the Executive Order did so because the precinct clerk was not notified of the Executive Order, despite having an operable telephone.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that finds Respondent guilty of two violations of Section 104.051(2), Florida Statutes, and imposes against her an administrative fine in the total amount of $2,000.00. DONE AND ENTERED this 29th day of August, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 29th day of August, 2005.
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 issues in this case are whether the Respondent, Raul Aguilera, committed the violation alleged in an Administrative Complaint, DPBR Case Number 2007-065018, issued by Petitioner Department of Business and Professional Regulation on January 12, 2009, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the state agency charged with regulating the practice of community association management pursuant to Chapters 455 and 468, Florida Statutes. Raul Aguilera is and was at the times material to this proceeding a licensed Florida Community Association Manager (hereinafter referred to as a “CAM”), having been issued license number CAM 6844. At the times material to this proceeding, Mr. Aguilera’s address of record was 2200 Northwest 102nd Avenue, Apartment 5, Miami, Florida. Courts of Birdwood Condominium Association. At the times material to this proceeding, Mr. Aguilera served as the Manager of SPM Group, Inc., and as the CAM for the Courts of Birdwood Condominium Association (hereinafter referred to as the “Association”). The Association’s 2007 Election. On or about October 16, 2007, the Department received a petition package from residents of the Association requesting the appointment of an election monitor (hereinafter referred to as the “Petition”), an Association election that had been scheduled for November 7, 2007. The Petition was reviewed and determined to be complete. At the time of receipt of the Petition, Danielle Carroll was the Department’s “Condominium Ombudsmen.” See § 718.5011, Fla. Stat. Among other powers, Section 718.5012(5), Florida Statutes, grants the following power to the Condominium Ombudsmen: (5) To monitor and review procedures and disputes concerning condominium elections or meetings, including, but not limited to, recommending that the division pursue enforcement action in any manner where there is reasonable cause to believe that election misconduct has occurred. Section 718.5012(9), Florida Statutes, establishes the Condominium Ombudsmen’s authority with regard to elections disputes: (9) Fifteen percent of the total voting interests in a condominium association, or six unit owners, whichever is greater, may petition the ombudsman to appoint an election monitor to attend the annual meeting of the unit owners and conduct the election of directors. The ombudsman shall appoint a division employee, a person or persons specializing in condominium election monitoring, or an attorney licensed to practice in this state as the election monitor. All costs associated with the election monitoring process shall be paid by the association. The division shall adopt a rule establishing procedures for the appointment of election monitors and the scope and extent of the monitor's role in the election process. Pursuant to the foregoing quoted charge, Ms. Carroll first verified that 15 percent of the Association’s residents had signed the Petition requesting the appointment of a monitor. Once Ms. Carroll had verified that she was authorized and, indeed, required to appoint an election monitor for the Association, she sent a letter dated October 7, 2007, addressed to the “Board of Directors” of the Association notifying them that the Petition had been received, that it had been determined to be complete and sufficient, and that she had, pursuant to the authority of Section 718.5012(9), Florida Statutes, and Florida Administrative Code Rule 61B-00215, “appointed an election monitor to attend and conduct the election of directors at your association’s annual meeting.” Ms. Carroll also informed the Association that “all costs associated with the election monitoring process shall be paid by the association.” Once a request for an election monitor has been received and verified, the Condominium Ombudsmen will not cancel the monitor unless the scheduled election is cancelled. In response to Ms. Carroll’s October 7, 2007, letter, Mr. Aguilera spoke with Ms. Carroll by telephone on or about October 25, 2007. During this conversation, Mr. Aguilera told Ms. Carroll that “the Board members aren’t running for re- election and so there wasn’t going to be an election.” In fact, while the dispute that had led to the filing of the Petition had been resolved, the November 7, 2007, election had not been cancelled, which Mr. Aguilera was fully aware of. In a letter dated October 29, 2007, from Mr. Aguilera to Ms. Carroll, Mr. Aguilera confirmed that there would be no election: IN RESPONSE TO YOUR LETTER DATED OCTOBER 25, 2007 [NOT OFFERED AT HEARING], I MUST ADVISE THAT THERE WAS NO ELECTION BEING HELD DUE TO THE FACT THAT THE PRERSON THAT FILLED [SIC] PETITION FOR RLECTION MONITOR WILL BE ON THE BOARD OF DIRECTORS AUTOMATICALLY. NO MEMBERS OF THE PRIOR BOARD OF DIRECTORS SIGNEDUP FOR THE ELECTIONS [SIC]. . . . . Mr. Aguilera’s representation to Ms. Carroll in the October 29, 2007, letter was only partially correct, as Mr. Aguilera was fully aware. What had actually happened was that the Petition had been signed and filed because the residents who signed it were upset with the current Board of Directors. The persons on the Association’s Board of Directors who the residents signing the Petition were upset with decided not to run for re-election. This decision eliminated the concern which had generated the Petition. Additionally, Mr. Aguilera was concerned about the costs associated with having a monitor at the election. In an effort to avoid the costs of the monitor, Mr. Aguilera simply told Ms. Carroll that the election had been cancelled. Despite Mr. Aguilera’s representations to the contrary, the election of the Association’s Board of Directors was held as scheduled on November 7, 2007. Seven candidates were listed on the election ballot and five of those individuals were elected. Because the number of candidates exceeded the number of positions, the election was necessary. See § 719.112(2)(d)1., Fla. Stat. In a letter dated December 10, 2007, from Mr. Aguilera to the Department’s Bureau Chief-Investigations, Mr. Aguilera admitted that he “made a wrong decision and wrote a letter to give some answers to the (DPBR) request.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order finding that Mr. Aguilera committed the violation described in this Recommended Order and imposing the following penalties: Probation for 12 months, beginning upon the entry of the final order in this case; Payment of an administrative fine in the amount of $750.00; Attendance at 12 hours of continuing education in CAM practice to be completed within his probation period; and Payment to the Department of costs of $316.12. DONE AND ENTERED this 10th day of June, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 10th day of June, 2009. COPIES FURNISHED: Philip F. Monte, III, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Raul Aguilera 2200 Northwest 102nd Avenue Apartment 5 Miami, Florida 33172 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Anthony B. Spivey, Executive Director Regulatory Council of Community Association of Managers Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether petitioner is entitled to an award of attorney's fees and costs under Section 57.111, Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This case involves a claim by petitioner, John E. Phillips, Jr., that he is entitled to an award of attorney's fees and costs because of an administrative action improvidently brought against him by respondent, Department of Banking and Finance (DBF). When the complaint was filed, Phillips was registered with DBF as an associated person with Aragon Financial Services, Inc. DBF contends the claim is without merit because Phillips is not a small business party within the meaning of the law, there is substantial justification to support the agency's decision to file a complaint, and special circumstances are present which would make an award of fees and costs unjust. The action which underlies this claim involved an administrative complaint filed against Phillips on February 4, 1994, charging him with violating various provisions within Chapter 517, Florida Statutes. That complaint was assigned Case No. 94-1266. The complaint also denied an application by Phillips to register as an associated person with a new firm. In addition, the complaint named Bruce M. Walker as a co-respondent, and as to that registrant, the complaint was assigned Case No. 94-1358. Both cases were consolidated for hearing and, after an evidentiary hearing was conducted on June 27, 1994, a Recommended Order was issued on September 13, 1994, recommending that all charges against Phillips be dismissed and that his application for registration be approved. The Recommended Order was adopted by DBF without change, and Phillips is accordingly deemed to be a prevailing party in that action. Phillips has requested fees and costs in the amount of $15,000.00, the maximum allowed by law. Respondent does not contest the reasonableness of that amount. Prima Facie Requirements for an Award of Fees and Costs In order to show entitlement to an award of fees and costs, petitioner must demonstrate that he is a "prevailing small business party" within the meaning of the law. Since he has filed the petition on his own behalf, he must show he is a sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by the state agency, not more than 25 full-time employees or a net worth of not more than $2 million. At the time the administrative complaint was filed, Phillips was domiciled in Pensacola, Florida, and had a net worth of less than $2 million. According to an uncontroverted allegation in his petition, Phillips had no "employees relating to business that formed the basis for the Agency's charges." Petitioner was also a 50 percent shareholder in a subchapter S corporation known as Phillips, Walker & Associates, Inc. (PWA), a Pensacola firm engaged in the sale of insurance products. Although Phillips was registered with DBF as an associated person with Aragon Financial Services, Inc., that firm was not the subject of the complaint nor is it otherwise relevant to this dispute. Petitioner's principal source of income was through the sale of insurance products sold through PWA although he occasionally sold a few securities during that same period of time. The administrative complaint was not filed against PWA, which held no licenses from the state, but rather was filed against the registration of Phillips as an individual. Although he was an officer, employee and shareholder of PWA, Phillips was not a sole proprietor of an unincorporated business, including a professional practice. Therefore, he does not qualify as a small business party. Was There Substantial Justification? The consumer complaint which eventually led to the filing of the charges in Case No. 94-1266 was made by Jane Hubbard, a Gulf Breeze realtor who had loaned a substantial amount of money ($50,000.00) to PWA in May 1988 and was never repaid. The loan was secured by a promissory note personally signed by Phillips and Walker, as the owners of the corporation. After PWA ceased doing business in May 1990, and both Phillips and Walker had filed for bankruptcy, Hubbard, or her attorney, contacted DBF in an effort to seek DBF's aid in collecting her money from Phillips and Walker. Since petitioner was registered with DBF as an associated person, and thus was subject to DBF's regulatory jurisdiction, Hubbard apparently assumed that Phillips may have violated the law in some respect, and the agency might be able to assist her in recovering all or a part of her money. A similar complaint filed with the Department of Insurance was not pursued by that agency. Hubbard's complaint was eventually referred to a DBF financial examiner, Robert R. Kynoch, who, among other things, interviewed Phillips, Walker, Hubbard, and three other persons who had made loans to Walker (but not Phillips). Although Kynoch did not place the persons interviewed under oath during the investigative stage, there was no requirement that he do so. Based on a representation by Hubbard that Phillips and Walker had failed to disclose to her all relevant information regarding PWA's financial status at the time the loan was made, Kynoch concluded that a reasonable basis existed to bring charges against the two if the loan was actually an investment, and thus subject to DBF's jurisdiction under Chapter 517, Florida Statutes. Accordingly, Kynoch prepared a written investigative report, received in evidence as respondent's exhibit 3, which recommended that the report "be further reviewed for appropriate disposition." The report was first reviewed by Michael D. Blaker, a DBF area financial manager, who approved the recommendation and forwarded it to his supervisor, Richard White. It was then reviewed and approved by a bureau chief, William Reilly, and finally by the division director, Don Saxon. After Saxon signed off on the report, it was sent to the general counsel's office for a legal determination as to whether the loan was an investment. Margaret S. Karniewicz, an assistant general counsel, concluded that it was, and recommended the issuance of an administrative complaint. After an evidentiary hearing was conducted, a determination was made that the loan constituted an investment. This determination in the Recommended and Final Orders was not contested by any party, including Phillips. There was, however, insufficient evidence to establish that misrepresentations were made by Phillips during the sale of the investment. For this reason, the charges against Phillips were dismissed and his application for registration with a new firm was approved. Because DBF had statements, which it assessed to be credible, from a complaining witness (Hubbard) that misrepresentations or material omissions were made by Phillips and Walker during the transaction, and DBF properly construed the transaction as an investment, it had a reasonable basis in fact and law to file the complaint. Since there was no showing that the agency's credibility assessment was unreasonable, DBF was substantially justified in bringing the charges in Case No. 94-1266. Special Circumstances There was no evidence presented by respondent to show that special circumstances exist that would make an award of attorney's fees and costs unjust.
Findings Of Fact Petitioner, Six L's Packing Company, Inc. (Six L's), is in the business of selling produce, including tomatoes. Its principal address is 2020 Scott Street, Hollywood, Florida. Respondent, Fair Chester Tomato Packers, Inc. (Fair Chester), is engaged primarily in the business of packaging and distributing tomatoes in the New York City metropolitan area. It purchases produce from various sellers such as petitioner. As a licensed agriculture dealer, respondent is required to file a surety bond with the Department of Agriculture and Consumer Services (Department) to insure payment of any indebtedness to persons selling agricultural products to the dealer. In this regard, Fair Chester has filed a $50,000 surety bond under written by respondent, Hartford Accident and Indemnity Company (Hartford). On May 3, 4, 9 and 26 and June 7, 1984, petitioner sold five shipments of tomatoes to respondent for a price of $44,156. 1/ Within the next few months, Fair Chester was beset with financial problems and was unable to pay Six L's and other trade creditors. Because of this, the creditors formed a committee in an effort to secure payment of their claims. Eventually, a composition agreement was drawn whereby the unsecured trade creditors agreed to settle, release and discharge in full their claims against Fair Chester on condition that each creditor signing the agreement be paid 33 1/3 percent of its claim "in full payment and settlement thereof," and provided that 95 percent or more in dollar amount of all the debtor's unsecured trade creditors accepted the terms and provisions in writing on or before November 13, 1984. More than 95 percent in dollar amount of the trade creditors accepted the terms and provisions of the composition agreement by the November 13, 1984 deadline. Six L's was one of those creditors who accepted the agreement. Although Six L's claimed that it executed the agreement only because of representations by respondent that it could still proceed against the surety bond in a separate administrative action, there is insufficient evidence to support such a finding. Six L's executed the agreement on November 8, 1984, and later received and cashed a check dated November 9, 1984, from Fair Chester in the amount of $14,718.60 which represented one-third of its total claim. Six L's has never rescinded the composition agreement. Even though it signed the composition agreement, and received payment from Fair Chester as promised, Six L's filed a complaint with the Department against respondents on November 15, 1984, seeking payment of the $30,270.60 still owed. That amount was later reduced to $29,437.40 by agreement of the parties. The complaint precipitated the instant controversy. One of the unsecured trade creditors owed monies was J. R. Brooks and Son, Inc. (Brooks), a grower in Homestead, Florida. Brooks refused to enter into the composition agreement unless Fair Chester agreed that Brooks could also file an administrative complaint against Fair Chester seeking recovery against the surety bond. Because Brooks' participation in the agreement was necessary to achieve the requirement that 95 percent or more in dollar amount of all unsecured trade creditors participate in the agreement, Fair Chester agreed to Brooks' proposal. An agreement was formalized by letter from Fair Chester's counsel to Brooks on November 1, 1984. The letter provided that Brooks' "acceptance of the Composition Agreement . . . shall be without prejudice to the complaint and/or proceeding which (it) commenced against (respondents) before the Department of Agriculture and Consumer Services." The agreement was not disclosed to other trade creditors or the surety company. Nonetheless, Six L's learned of this agreement at a later time.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Fair Chester Tomato Packers, Inc. pay Six L's Packing Company, Inc. $29,437.40. In the event the principal fails to or cannot pay the indebtedness, Hartford Accident and Indemnity Company shall pay said amount out of the surety bond posted with the Department of Agriculture and Consumer Services. DONE and ORDERED this 24th day of May, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 24th day of May, 1985.
