STATE OF FLORIDA
DIVISION OF
ADMINISTRATIVE HEARINGS
In Re GERALD S. REHM, )
)
Respondent, ) CASE
NO. 91-2830EC
) COMPLAINT
NO. 90-50
__________________________)
RECOMMENDED ORDER
Pursuant to written notice, a formal hearing was held in this case
before Larry J. Sartin, a duly designated Hearing Officer of the Division of
Administrative Hearings, on September 4, 1991, in Tampa, Florida.
APPEARANCES
For Petitioner: Virlindia Doss
Assistant Attorney General
Advocate for the Commission on
Ethics
Department of Legal Affairs
The Capitol, Suite 1601
Tallahassee, Florida 32399-1050
For Respondent: Mark Herron,
Esquire
J. B. Donnelly, Esquire
Akerman, Senterfitt, Eidson
& Moffit
216 South Monroe Street
Suite
300
Tallahassee, Florida 32301
STATEMENT OF THE ISSUES
Whether the Respondent, Gerald S. Rehm, violated Section 8(e), Article
II, Constitution of the State of Florida, by representing the Top of the Bay
Road Improvement Task Force for compensation before the Florida Department of
Transportation during his term of office as a Florida state representative?
PRELIMINARY STATEMENT
On or about March 30, 1990, a Complaint was filed with the Florida
Commission on Ethics (hereinafter referred to as the
"Commission"). The Complaint
was filed by Pat Imperato and contained allegations of misconduct by Gerald S.
Rehm, the Respondent in this case.
Based upon a review of the Complaint against the Respondent, the
Commission issued a Determination of Investigative Jurisdiction and Order to
Investigate on May 22, 1990, ordering the staff of the Commission to conduct a
preliminary investigation into whether the Respondent violated Section 8(e),
Article II, of the Constitution of the State of Florida.
Following the Commission's investigation of the allegations against the
Respondent, a Report of Investigation was released on December 12, 1990. Based upon the Complaint and the Report of
Investigation an Advocate for the Commission issued an Advocate's
Recommendation on January 30, 1991. The
Advocate who issued the Advocate's Recommendation determined that there was
probable cause to believe that the Respondent had violated Section 8(e),
Article II, of the Constitution of the State of Florida.
Based upon the Report of Investigation and the Advocate's
Recommendation, the Commission issued an Order Finding Probable Cause on March
12, 1991. The Commission ordered that a
public hearing be conducted.
By letter dated May 8, 1991, the Commission referred this matter to the
Division of Administrative Hearings and, in accordance with Rules 34-5.010 and
34-5.014, Florida Administrative Code, requested that the public hearing on the
Complaint against the Respondent be conducted by the Division of Administrative
Hearings.
Prior to the formal hearing the Advocate filed a Prehearing
Statement. At the formal hearing, the
Respondent stipulated to certain facts contained in a document attached to the
Prehearing Statement. Those facts have
been accepted in this Recommended Order.
At the formal hearing the Advocate presented the testimony of Jean
Dorzback, the Respondent, Teresa Estes, James Edwards, Ronald Pscion, John
DeWinkler, Joseph Brandenburg, Larry Jones and James Kennedy. The Advocate also offered six exhibits. All of those exhibits, except Advocate's
exhibit 6, were accepted into evidence.
Three of the exhibits consisted of the deposition testimony of Paul
Spina, Derrick Vardy and the Respondent.
The Respondent testified on his own behalf. The Respondent did not offer any exhibits into evidence.
The parties have filed proposed recommended orders which contain
proposed findings of fact. A ruling on
each proposed finding of fact has been made either directly or indirectly in
this Recommended Order or the proposed finding of fact has been accepted or
rejected in the Appendix which is attached hereto.
FINDINGS OF FACT
A. The Respondent.
1. The Respondent, Gerald S.
Rehm, served as Mayor of the City of Dunedin, Florida, from 1965 to 1972.
2. The Respondent served in the
Florida Senate from 1980 to 1984. Among
other duties, the Respondent served on the Senate Transportation Committee.
3. The Respondent served as a
Florida state representative from November 4, 1986, through November 6,
1990. (Stipulated Fact).
4. At all times relevant to this
proceeding, the Respondent served as a public official.
5. During the time that the
Respondent served as a Florida state representative, he served on the House
Transportation Committee and House Appropriations Committees. At some time during his service as a Florida
state representative the Respondent asked to be removed from the House
Transportation Committee. This request
was granted.
B. The Top of The Bay Road
Improvement Task Force.
6. The Top of the Bay Road
Improvement Task Force (hereinafter referred to as the "Task Force"),
was a private, not-for-profit organization incorporated on June 14, 1985. It was dissolved in late 1990. (Stipulated Fact).
7. The original and primary
purpose of the Task Force was to expedite the widening of State Road 580/584
(hereinafter referred to as the "580/584 Project"). The Task Force endeavored to obtain
donations of right-of-way along the 580/584 Project corridor to accomplish its
goal. Over time, the purpose of the
Task Force expanded to include the tracking of road development in northern
Hillsborough and Pinellas counties, to the extent that other roads and projects
impacted on the 580/584 Project.
(Stipulated Fact).
8. The 580/584 Project included
roads of Hillsborough and Pinellas Counties and the State of Florida. Therefore, Hillsborough and Pinellas
Counties and the State were involved in the 580/584 Project. The Task Force hoped to insure that all
three government bodies were communicating about the 580/584 Project.
9. The Task Force believed that
the 580/584 Project would not be completed until as late as the year 2010. By providing coordination and obtaining
donations of right-of-way along the 580/584 Project corridor, the Task Force
hoped to facilitate the completion of the 580/584 Project sooner.
10. The Task Force was aware
that if needed right-of-way along the 580/584 Project corridor was donated, it
could take only a day to complete the donation instead of taking as long as two
years to acquire the same right-of-way by eminent domain. Acquiring right-of-way along the 580/584
Project corridor by eminent domain was inconsistent with the purpose of the
Task Force.
11. The poor condition of
highways 580 and 584 was adversely affecting business interests along these
highways. The Task Force was formed to
correct this problem as soon as possible.
The completion of the 580/584 Project was also necessary for some land
owners along the 580/584 Project corridor to be able to obtain DRI (Development
of Regional Impact) permits necessary to develop their property.
12. When first conceived, it was believed that the Task Force would
be needed only for a short period of time.
The Task Force was continued beyond the period of time originally
contemplated because it was believed that the government agencies involved would
believe that they were being "watched" if the Task Force remained
active.
13. The Task Force received most
of its funding from large land owners and developers. (Stipulated Fact). About
12 to 15 major landowners, businesses and developers provided most of the Task Force's funding. The goals of the Task Force were the goals
of those who contributed the Task Force's funds.
C. The Respondent's Involvement
with the Task Force.
14. The Respondent served as the
executive director of the Task Force from its inception in 1985 until November
13, 1989. (Stipulated Fact).
15. The Respondent's involvement
with the Task Force began before, and continued after, he became a Florida
state representative.
16. The Respondent's duties as
executive director of the Task Force included working with the Florida
Department of Transportation (hereinafter referred to as the
"Department") to ensure that donations of right-of-way adjacent to
State Road 580/584 met the Department's legal and technical requirements. (Stipulated Fact).
17. The Respondent's duties as
executive director of the Task Force also included gathering information about
the Department's progress and decisions pertaining to the 580/584 Project, so
that the proper right-of-way donations could be obtained. (Stipulated Fact).
18. The Respondent characterized
his relationship with the Task Force as that of a "consultant."
19. The Respondent spoke with
the Task Force's general counsel prior to becoming a Florida state
representative. Based upon his
discussion with the general counsel, the Respondent concluded that he had not
been doing anything on behalf of the Task Force that would cause a conflict of
interest if he continued his involvement after becoming a Florida state
representative.
20. The nature of the
Respondent's activities on behalf of the Task Force did not materially change
after he became a Florida state representative. He continued to perform his duties in an effort to assist the
Task Force to achieve its goals of seeing a quick conclusion of the 580/584
Project which was in the interest of the Task Force and those who had created
it, and the other goals of the Task Force.
21. The Respondent's duties as
executive director of the Task Force also included production of what were
known as "Task Force Monitor Maps."
A man by the name of Dick Vaugier, however, also was involved in the
preparation of the Task Force Monitor Maps and may have actually performed the
physical creation of the maps. The maps
tracked the status of all road projects and provided projected completion dates
and other information of interest to the Task Force. (Stipulated Facts).
22. Some of the information
required to produce the Task Force Monitor Maps was obtained by the Respondent
from the Department. (Stipulated Fact).
23. Task Force Monitor Maps
underwent several revisions as road projects progressed. (Stipulated Fact).
24. The Respondent provided
copies of the completed Task Force Monitor Maps to the Department. (Stipulated Fact). Copies of the maps were also kept at an office of the Respondent
where interested persons could review them.
D. The Respondent's Contacts
with the Department of Transportation.
25. During the period of time
that the Respondent served in the Florida House of Representatives, he had
numerous contacts by telephone and in person with employees of the Department
concerning the 580/584 Project.
26. The Respondent had three
contacts with Gene Dorzback, Department Assistant Project Development and
Environmental Administrator, concerning the 580/584 Project. Ms. Dorzback worked in the Department's
District 7. Ms. Dorzback worked for the
Department from May, 1988, to October, 1990.
All of her contacts with the Respondent were during the period of time
that he was a Florida state representative.
27. The Respondent discussed the
580/584 Project with Ms. Dorzback on June 15, 1989, during a public hearing on
the 580/584 Project. During this
conversation, the Respondent expressed his disapproval and frustration over the
alignment of the 580/584 Project which the Department had established prior to
the public meeting and which the Department had discussed with the public
during the public hearing. The
Respondent also questioned Ms. Dorzback about why the Department had decided on
the alignment presented.
28. Alignment of a road project
involves the decision of which side(s) of the road additional right-of-way
necessary to complete a road-widening project will be taken from and the amount
of right-of-way necessary. Alignment of
the 580/584 Project was determinative of the right-of-way which would have to
be donated in order to achieve the Task Force's goals.
29. The Respondent's concern
over the alignment for the 580/584 Project was over the fact that the alignment
would require obtaining right-of-way from property owners that had not agreed
to donate right-of-way, and ignored some property owners that were willing to
donate right-of-way. Although the
Respondent did not specifically suggest that a particular alignment be used by
the Department, he did suggest that the Department consider using the right-of-way
which property owners were willing to donate.
In order for the Department to accept this suggestion the Department
would have been required a change the alignment of the 580/584 Project.
30. At some time after the June
15, 1989, public hearing, the Respondent also telephoned Ms. Dorzback and
inquired whether she had been provided with certain survey information
concerning the 580/584 Project from the District 7 Survey Administrator, Larry
Jones. The information involved property
of owners who were willing to donate right-of-way. Although the Respondent did not specifically suggest any
particular alignment, it was evident from the Respondent's comments to Ms.
Dorzback that he believed that accepting donated right-of-way would speed up
completion of the 580/584 Project. Ms.
Dorzback explained to the Respondent why she did not believe that completion of
the project would necessarily be speeded up by accepting donated right-of-way.
31. The third conversation Ms.
Dorzback had with the Respondent involved an inquiry from the Respondent
concerning whether she had received the survey information he had previously
inquired about.
32. At the time of the
Respondent's contacts with Ms. Dorzback, she was aware that he was a Florida
state representative. Ms. Dorzback was
consequently intimidated by the Respondent's criticisms. She was not initially aware of his
connection with the Task Force.
33. The Respondent also had
contacts with Teresa Estes. Ms. Estes
was a Project Manager in the Department's District 7 Project Development and
Environmental Section. The Respondent's
contacts with Ms. Estes occurred approximately once every three or four months
over a two-year period of time when the Respondent was a Florida state
representative.
34. Some of the contacts Ms.
Estes had with the Respondent involved the 580/584 Project. The contacts took place in the Department's
offices. During the Respondent's
contacts with Ms. Estes, he inquired about, and they discussed, the progress on
an environmental study required for the 580/584 Project.
35. The Respondent requested
information from Ms. Estes concerning the 580/584 Project, which she provided
to him.
36. The approximately
$210,000.00 cost of the environmental study for the 580/584 Project was paid
for by two corporations, the Millford Corporation and the Hollywood
Corporation. The weight of the evidence
failed to prove if these corporations were involved with the Task Force.
37. Ms. Estes knew that the
Respondent was a Florida state representative when some of the contacts she had
with him occurred.
38. The Respondent informed Ms.
Estes that he was a Florida state representative, that he was interested in the
580/584 Project and that he worked with the Task Force. The evidence, however, failed to prove when
the Respondent told Ms. Estes that he worked with the Task Force.
39. The Respondent also had at
least three or four contacts with James Edwards. Mr. Edwards was the District 7 Public Transportation Manager for
the Department from February, 1987, through the present.
40. The Respondent contacted Mr.
Edwards by telephone or in person to inquire about the status of the 580/584
Project, right-of-way donations, and other issues or aspects germane to
specific projects in the area of the 580/584 Project. Mr. Edwards had at least one other meeting with the Respondent
which did not involve the 580/584 Project.
41. Mr. Edwards had to gather
information concerning the 580/584 Project prior to his meetings with the
Respondent and he provided that information to the Respondent.
42. The Respondent also met
three or four times with Ronald G. Pscion, the Department's District 7 Director
of Planning and Programs.
43. During one of the Respondent's
contacts with Mr. Pscion, the Respondent inquired about the status of the
580/584 Project's work program and how the work on the 580/584 Project was
scheduled. Mr. Pscion knew that the
Respondent was working with property owners that wanted to donate right-of-way
for the 580/584 Project and that one donation was dependent on a particular
construction job on the 580/584 Project being completed by fiscal year '91-92.
44. During another contact with
Mr. Pscion, the Respondent wanted to insure that the Department was aware of
other developments in the area of the 580/584 Project which could impact the
project. The Respondent wanted to be
sure that traffic in the area could be handled by the 580/584 Project.
45. During a third conversation
with Mr. Pscion, the Respondent inquired about the status of the 580/584
Project.
46. The Respondent requested
that Mr. Pscion let him know if there was any change in the work program for
the 580/584 Project.
47. The Respondent provided a copy
of the Task Force Monitor Map prepared for the Task Force to Mr. Pscion.
48. The Respondent also had
contacts with Mr. Pscion concerning other road projects of the Department.
49. Mr. Pscion was aware that
the Respondent was a Florida state representative but was not aware of his
relationship with the Task Force.
50. The Respondent also had more
than ten contacts with John H. DeWinkler, the Department's District 1 Director
of Production. Mr. DeWinkler worked
with the Respondent to achieve the Task Force's objective of trying to speed up
the 580/584 Project without having to go through a lengthy process to complete
the project. The property owners that
were willing to donate right-of-way were entitled to certain rights. Mr. DeWinkler wanted to insure that those
rights were not violated.
51. Contacts concerning the
580/584 Project were made by the Respondent with Mr. DeWinkler at or near the
time that what is now the Department's District 7 was separated from the
Department's District 1. That split
occurred in approximately October, 1988, after the Respondent became a Florida
state representative. Therefore, some
of the Respondent's contacts with Mr. DeWinkler took place when the Respondent
was a Florida state representative.
52. The Respondent had at least
two contacts concerning the 580/584 Project with Joseph R. Brandenburg. These contacts occurred while the Respondent
was a Florida state representative. Mr.
Brandenburg was a Department District 7 Right-of-Way Surveyor from September,
1986, through July, 1988.
53. One contact between the
Respondent and Mr. Brandenburg involving the 580/584 Project was a meeting
which was also attended by Mr. DeWinkler and Derrick Vardy, the Department's
District 1 Right-of Way Administrator.
During this meeting the Respondent inquired about areas along the
580/584 Project corridor for which right-of-way donations were still
needed. As a result of this meeting,
Mr. Brandenburg was to provide right-of-way maps and property legal
descriptions concerning the 580/584 Project to the Respondent.
54. The other contact which Mr.
Brandenburg had with the Respondent was a telephone conversation during which
the Respondent inquired about the information he was to be provided as a result
of the meeting described in finding of fact 53.
55. Mr. Brandenburg, subsequent
to his two contacts with the Respondent, provided the right-of-way maps and
property legal descriptions concerning the 580/584 Project to the
Respondent. This information was to
facilitate the donations of certain right-of-ways along the 580/590 Project
corridor.
56. Between February, 1988, and
February, 1989, the Respondent also had three contacts with Larry R.
Jones. Mr. Jones at that time was
Department District 7 Right-of-Way Surveyor.
57. The first contact between
the Respondent and Mr. Jones took place shortly after Mr. Jones was employed by
the Department. Mr. Jones and the Respondent
argued about the width of the right-of-way needed for the 580/584 Project. Their difference of opinion was clarified by
Mr. Jones' supervisor.
58. The second contact between
the Respondent and Mr. Jones occurred after a telephone call from the
Respondent informing Mr. Jones that he was going to come by and pick up title
search information concerning the 580/584 Project which was being provided by
Pinellas County, Florida. The
Respondent did come by and pick up the information.
59. During the third contact
between the Respondent and Mr. Jones, they discussed the impact of Murphy Act
Deeds on the 580/584 Project. The
Respondent suggested that any interest the State might have pursuant to the Murphy
Act Deeds should be released to property owners who donated right-of-way for
the 580/584 Project. Mr. Jones
explained to the Respondent why this should not be done. Mr. Jones testified as to what a Murphy Act
Deed, which is also known as "TIITF Reservation", is and the reason
why the Department could not take the action the Respondent was suggesting, as
follows:
A. Basically a
TIITF Reservation was
something out of the '30's and '40's. If a
tax collector seized a piece of property and
sold it for the back taxes, they would reserve
a strip of land for road purposes. And in
this case 584 had some of these TIITF
Reservations on them.
That land is usable by
the State Road Department. We have to go to
DNR to get an easement, not the property
owner. We don't
pay for them.
And by releasing the remainder over from
what the PD&E study called for, we'd be in a
position if we had to have more right-or-way,
we would be back in an acquisition
condemnation scenario, we'd be dealing with
the property owners instead of DNR.
Lines 2-15, page 103, Transcript of
the September 4, 1991, Formal Hearing.
60. At the time of the contacts
with the Respondent, Mr. Jones was aware that the Respondent was a Florida
state representative. The Respondent
also represented to Mr. Jones that he was working for the Task Force.
61. James G. Kennedy was the
District Secretary for the Department's District 7 from 1987 until May,
1990. From 1984 until 1987, Mr. Kennedy
was the Urban Office Director for the Department's District 1.
62. Prior to and after the
Respondent became a Florida state representative, Mr. Kennedy had numerous
contacts with the Respondent about various transportation matters, including
the 580/584 Project.
63. During the Respondent's
contacts with Mr. Kennedy after the Respondent became a state representative,
the Respondent inquired about the 580/584 Project. In particular, the Respondent asked for information concerning
the manner in which the Department acquired right-of-way and the progress on
the project.
64. Mr. Kennedy made his staff
available to the Respondent. The degree
of support given to the Respondent was in part attributable to the Respondent's
position as a Florida state representative.
The degree of contact Mr. Kennedy and his staff had with the Respondent was significant
enough that Mr. Kennedy reported the situation to the Department's Secretary at
the time, Kay Henderson. Secretary
Henderson merely suggested that Mr. Kennedy use his best judgement to handle
the matter.
65. Mr. Kennedy was aware of the
Respondent's involvement with the Task Force.
Mr. Kennedy had been told by the Respondent that the Respondent was the
leader of the Task Force. Mr. Kennedy
was concerned enough about the Respondent's relationship with the Task Force
that he asked the Respondent whether the Respondent thought there was a conflict
of interest with his position as a Florida state representative.
66. Mr. Kennedy was aware that
the purpose of the Task Force was to obtain donations of right-of-way along the
580/584 Project corridor to speed up the completion of that project.
67. Mr. Kennedy made his
Department available to the Respondent to assist the Respondent in his efforts
to insure that the donation of right-of-way along the 580/584 Project corridor
was handled properly.
68. The Respondent provided Mr.
Kennedy with up-to-date Task Force Monitor Maps.
69. Derrick Vardy was a
Department District 1 Right-of-Way Administrator. Mr. Vardy had two telephone conversations with the Respondent and
approximately two or three face-to-face meetings with him concerning the
580/584 Project. Some of these contacts
occurred in August, 1987.
70. Mr. Vardy attempted to
assist the Respondent with documents needed to acquire donations of right-of-way
for the 580/584 Project.
71. All of the information which
the Respondent obtained from employees of the Department was information which
was available to the public. The
information was obtained, however, on behalf of the Task Force and not in the
Respondent's capacity as a Florida state representative or as a member of the
public.
72. The Respondent's contacts
with the Department while he was a Florida state representative were made to
further the goals of the Task Force and were made on behalf of the Task Force.
E. Compensation.
73. Beginning in 1985, when the
Respondent began to perform services for the Task Force, and continuing until
November, 1986, the Respondent was paid a consulting fee for his services as
executive director of the Task Force.
74. After the Respondent's
election as a Florida state representative in November, 1986, the payments from
the Task Force that had been made directly to the Respondent were made to
Gerald S. Rehm and Associates, Inc.
75. Gerald S. Rehm and
Associates, Inc., is a closely held corporation, the stock of which was owned
by the Respondent.
76. From 1985 until sometime
during 1987, the Task Force paid $2,000.00 a month to the Respondent and later
Gerald S. Rehm and Associates, Inc.
77. The amount paid by the Task
Force to Gerald S. Rehm and Associates, Inc., was increased in 1987 to
$3,000.00 and the corporation began "absorbing expenses" according to
the Respondent.
78. The payments to Gerald S.
Rehm and Associates, Inc., were made in payment for services of the
Respondent. Those services were the
same services the Respondent performed for which payments were made directly to
the Respondent before he become a Florida state representative.
79. The weight of the evidence
failed to prove that the payments made by the Task Force to Gerald S. Rehm and
Associates, Inc., were merely reimbursements of expenses of the corporation.
80. The Respondent testified
that the payments his corporation received while he was a Florida state
representative were reimbursements of expenses. This testimony was not credible.
The Respondent characterized the payments he had received prior to his
election as a Florida state representative as consulting fees. He did not characterize the payments he
received before his election as a reimbursement of expenses. The Respondent admitted that his services
were essentially the same before and after he became a Florida state
representative. Therefore, since his
services did not change and the amount of the payments did not change after he
became a Florida state representative, it is not credible to believe that the
payments after he became a Florida state representative were merely intended as
a reimbursement of expenses.
Additionally, the weight of the evidence failed to prove that there was
any connection between the expenses that the Respondent or his corporation
incurred and the amount of the payments he or his corporation received. Finally, the Respondent testified that the
increase from $2,000.00 per month to $3,000.00 per month which occurred in 1987
was to cover expenses. Therefore, based
upon the Respondent's own testimony, only $1,000.00 of the $3,000.00 monthly
payments were for expenses.
CONCLUSIONS OF LAW
A. Jurisdiction and Burden of
Proof.
81. The Division of
Administrative Hearings has jurisdiction of the parties to and the subject
matter of this proceeding. Section
120.57(1), Florida Statutes (1989).
Section 8(f), Article II, of the Constitution of the State of Florida,
and Rule 34-5.0015, Florida Administrative Code, authorize the Florida
Commission to conduct investigations and make public reports on complaints
concerning violations of Section 8(f), Article II, of the Constitution of the
State of Florida.
82. The burden of proof, absent
a statutory directive to the contrary, is on the party asserting the
affirmative of the issue of the proceeding.
Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988);
Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA
1981); and Balino V. Department of Health and Rehabilitative Services, 348
So.2d 249 (Fla. 1st DCA 1977). In this
proceeding it is the Commission, through the Advocate, that is asserting the
affirmative: that the Respondent
violated Section 8(f), Article II, of the Constitution of the State of
Florida. Therefore, the burden of
proving the elements of the Respondent's alleged violation was on the
Commission.
B. The Respondent's Alleged
Violation of Section 8(e), Article II, of the Constitution of the State of
Florida.
83. Section 8(e), Article II, of
the Constitution of the State of Florida, provides, in pertinent part, the
following:
No member of the legislature shall personally
represent another person or entity for
compensation during term of office before any
state agency other than judicial tribunals.
84. A violation of Section 8(e),
Article II, of the Constitution of the State of Florida, requires proof of the
following elements:
a. The
Respondent must have been a member
of the legislature;
b. The Respondent must have represented
another person or entity; and
c. The
Respondent's representation of
another person or entity must have been before
a state agency other than a judicial tribunal;
and
d. The
Respondent's representation of
another person or entity must have been for
compensation.
1. The First Element; Was the
Respondent a Member of the Legislature.
85. The evidence proved, and the
parties stipulated, that the Respondent was elected to, and did serve as a
member of the Florida House of Representatives from November 4, 1986, through
November 6, 1990. The first element
has, therefore, been proved. In
determining whether the Respondent violated the other elements of Section 8(e),
Article II, of the Constitution of the State of Florida, it is the Respondent's
activities during the period of time that he served as a Florida state
representative that will be determinative.
2. The Second Element: Did the Respondent Represent Another Person
or Entity?
86. The terms
"represent" or "representation" are defined in Section
112.312(17), Florida Statutes, to mean:
. . . actual physical attendance on behalf
of a client in an
agency proceeding, the
writing, of letters or filing of documents on
behalf of a client, and personal
communications made with the officers or
employees of any agency on behalf of a client.
This definition specifically applies
to the use of such terms under Section 8(e), Article II, of the Constitution of
the State of Florida. Section 112.312,
Florida Statutes.
87. The weight of the evidence
proved that the Respondent performed services while serving as a Florida state
representative on behalf of the Task Force sufficient to constitute
representation within the definition of that term provided in Section 112.312,
Florida Statutes, and as used in Section 8(e), Article II, of the Constitution
of the State of Florida.
3. The Third Element: Was the Respondent's Representation Before a
State Agency Other than a Judicial Tribunal?
88. An "agency" is
defined in Section 112.312(2), Florida Statutes, as follows:
"Agency" means any state, regional, county,
local, or municipal government entity of this
state, whether executive, judicial, or
legislative; any department, division, bureau,
commission, authority, or political
subdivision of this state therein; or any
public school, community college, or state
university.
89. The Department comes with
the definition of "agency" as that term is used in Section 8(e),
Article II, of the Constitution of the State of Florida.
90. At issue in this case is
whether the activities of the Respondent before the Department while he served
as a Florida state representative constituted representation before the
Department. The Respondent has argued
that all he did was to seek "public information as to the proper
procedures to be followed with respect to the donation of right-of-way and the
status of the SR 580/584 project."
Based upon this characterization of the Respondent's activities and the
Respondent's failure to "advocate a position of the Task Force for any
particular alignment of SR 580/584 or for any particular action by FDOT with
respect to the project" the Respondent has argued that the Respondent did
not represent any person or entity before any state agency.
91. The difficulty with the
Respondent's position is that his characterization of his activities before the
Department as merely information gathering is not supported by the weight of
the evidence. The Respondent's
inquiries and contacts with Department employees were intended to insure that
the Department knew that they were being "watched", and promoted
coordination between the Department and Hillsborough and Pinellas Counties. The Respondent's contacts were also intended
to promote the primary goal of the Task Force which was to insure that the
580/584 Project continued to progress as quickly as possible. The Respondent's activities were more than
merely gathering public information.
92. Additionally, the
Respondent's position is rejected because the weight of the evidence proved
that the Respondent's activities, regardless of their characterization, come
within the constitutional prohibition against representing others before a
state agency. The constitutional
prohibition at issue in this case is not limited only to instances where a
member of the legislature advocates a position or attempts to force a state
agency to take a position or action favorable to another person or entity from
whom the legislature receives compensation.
Therefore, it is concluded that the Respondent's activities before the
Department, which were made in an effort to insure the accomplishment of the
goal of the Task Force that the 580/584 Project was completed as soon as
possible, are sufficient to constitute representation of another person or
entity before a state agency. See
Commission on Ethic's Opinion ("CEO") 77-168. See also CEO 88-68 and CEO 81-24.
93. In support of his position,
the Respondent has relied upon CEO 82-83 (cited as 82-84 in the Respondent's
proposed recommended order). In CEO 82-83
the Commission indicated that the filing of articles of incorporation or
documents under the Uniform Commercial Code with the Department of State does
not create an opportunity to misuse a legislator's public office or create an
appearance of improper influence. That
is not the type of activity (purely routine, ministerial acts) that the
Respondent was engaged in this case. In
this case, the Respondent engaged in activities intended to promote the goals
of the Task Force and not merely routine, ministerial matters required by law.
94. The evidence proved that the
Task Force was interested in moving the 580/584 Project along to completion as
soon as possible in order to benefit the persons and entities which caused the
Task Force to be formed. The evidence
also proved that the Task Force was willing to pay the Respondent, directly or
indirectly, to achieve its goals.
Finally, the evidence proved that the Respondent's activities were
intended to assist the Task Force in achieving its goals. Therefore, the Respondent's activities,
whether characterized as gathering information, letting the Department know it
was being "watched" or advocating the goals of the Task Force, were
carried out on behalf of the Task Force and in furtherance of its goals.
4. The Fourth Element: Was the Respondent's Representation For
Compensation?
95. The evidence proved that
during the time that the Respondent represented the Task Force before the
Department and the Respondent was a Florida state representative, the Task
Force paid either $2,000.00 per month or $3,000.00 per month to Gerald S. Rehm
and Associates, Inc. These payments had
previously been made directly to the Respondent. The evidence also proved that the payments were made before and
after the Respondent's election as a Florida state representation for the
Respondent's activities on behalf of the Task Force. Finally, the evidence proved that the Respondent was the sole
shareholder of the stock of Gerald S. Rehm and Associates, Inc. Based upon these facts, it is concluded that
the Respondent was compensated by the Task Force while serving as a Florida
state representative for his representation of the Task Force before the
Department.
96. The Respondent has argued
that the payments made by the Task Force were not "compensation" but
were instead reimbursements of expenses.
In support of this position, the Respondent has cited CEO 80-41, CEO 83-16
and CEO 84-115. These advisory opinions
indicate that reimbursements for out-of-pocket travel, food, lodging and
similar expenses do not constitute "compensation". The Respondent has argued that the
Respondent's testimony that the payments his corporation received were only
received in payment of expenses incurred on behalf of the Task Force
constitutes unrefuted evidence proving that he did not receive any
"compensation" from the Task Force.
97. The Respondent did testify
that the payments were merely reimbursements of expenses. This testimony is, however, not credible. The Respondent testified that the payments
prior to his election as a Florida state representative were a consulting fee. He did not characterize the payments he
received before his election as a reimbursement of expenses. He also testified that his services were
essentially the same before and after he became a Florida state
representative. Therefore, since his
services did not change and the amount of the payments did not change after he
became a Florida state representative, it is not credible to believe that the
payments after he became a Florida state representative were merely intended as
a reimbursement of expenses.
Additionally, there was no evidence that indicated that there was any
direct connection between the expenses that the Respondent or his corporation
incurred and the amount of the payments he or his corporation received. Finally, the Respondent testified that the
increase from $2,000.00 per month to $3,000.00 per month was to cover
expenses. Therefore, based upon the
Respondent's own testimony, only $1,000.00 of the monthly payments were for
expenses.
5. Conclusion.
98. Based upon the foregoing, it
is concluded that the Respondent was compensated for representing another
person or entity, the Task Force, before a state agency, the Department, while
serving as a member of the Florida House of Representatives. Therefore, it is concluded that the
Respondent violated Section 8(e), Article II, of the Constitution of the State
of Florida. These conclusions are made
whether the "clear and convincing evidence" standard or the
"preponderance of the evidence" standard is applied to the evidence. Compare Ferris v. Turlington, 510 So.2d 292
(Fla. 1987); and Smith v. Department of Health and Rehabilitative Services, 522
So.2d 956 (Fla. 1st DCA 1988); with In re: Blackburn, 13 FALR 1859 (Commission
on Ethics 1989).
C. Penalty.
99. At the time that the
Respondent violated Section 8(e), Article II, of the Constitution of the State
of Florida, the Constitution provided no penalties for violations of Section
8(e), Article II, of the Constitution of the State of Florida. No violation of Section 112.3141, Florida
Statutes, for which a penalty may have been imposed, has been alleged against
the Respondent. Therefore, no penalty
may be imposed upon the Respondent in this case.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Commission on Ethics enter a Final Order and Public
Report finding that the Respondent, Gerald S. Rehm, violated Section 8(e),
Article II, of the Constitution of the State of Florida, as alleged in
Complaint No. 90-50.
DONE and ENTERED this 13th day of November, 1991, in Tallahassee,
Florida.
___________________________________
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)
488-9675
Filed with the Clerk of the
Division of Administrative Hearings
this 13th day of November, 1991.
APPENDIX TO RECOMMENDED
ORDER
The parties have submitted proposed findings of fact. It has been noted below which proposed
findings of fact have been generally accepted and the paragraph number(s) in the
Recommended Order where they have been accepted, if any. Those proposed findings of fact which have
been rejected and the reason for their rejection have also been noted.
The Advocate's Proposed
Findings of Fact
Proposed Finding Paragraph Number in
Recommended Order
of Fact Number of Acceptance or
Reason for Rejection
A.
General
1 3-4.
2 1.
3-4 2.
5 5.
B. Top of the Bay Task Force
1 6.
2 7.
3 8.
4 9-10.
5 12. 13.
7 11 and 13.
8 7 and 9-11.
C. The Respondent's Relationship with
the Task Force
1 14.
2 Hereby accepted.
3-4 17.
5-6 21.
7 22.
8 23-24.
9 15.
10 19-20.
11 73-75.
12 76-77.
13 75.
D. Respondent's Contacts with the
Department of
Transportation
1 See 26-27.
2 27-29.
3 28-29.
4 32.
5 30.
6 See 30.
7 31.
8 See 32.
9 26.
10 33.
11 33. The weight of the evidence failed to prove when Ms. Estes was
employed with the Department. It is
not, therefore, possible to tell whether his contacts with Ms. Estes were
during his term as a Florida state representative based upon when he
served. Ms. Estes did testify, however,
that she knew the Respondent was a Florida state representative. Based upon this testimony, it has been
concluded that the Respondent had contacts with Ms. Estes while he was a
Florida state representative.
12 34-35.
13 38.
14 39.
15 39-41.
16 See 39-41.
17 Not relevant. The evidence failed to prove who the
"developer" was or what relationship, if any, the
"developer" had with the Task Force or the Respondent.
18 41.
19 42.
20 42-43.
21 44.
22 45.
23 See 48.
24 46.
25 49.
26 Hereby accepted.
27 50.
28-29 51.
30-31 50.
32 52.
33 52-54.
34 53.
35 54.
36-37 55.
38 56.
39 See 56-57.
40 58.
41-42 59.
43 60.
44 59.
45 61.
46 66.
47 Hereby accepted.
48 62-63.
49 64.
50 68.
51 Hereby accepted.
52 69.
53 70.
54-55 69.
56 See 71.
57 Hereby accepted.
The Respondent's
Proposed Findings of Fact
Proposed Finding Paragraph Number in
Recommended Order
of Fact Number of Acceptance or
Reason for Rejection
1 3.
The evidence proved that the Respondent dropped the title of
"President." The evidence
also proved that the Respondent's duties after becoming a Florida state representative
did not materially change.
2 14.
3 6.
4 7.
5 7 and 10.
6 See 7.
7 15-16.
8 The meeting referred to in this
proposed finding of fact is not relevant.
It occurred before the Respondent became a Florida state
representative. See 50, 52-53 and 69.
9 17.
10 See 25-27 and 30-32. See 28-29 with regard to the 6th and 7th
sentences.
11 33-34 and 36.
12 39-40 and 71.
13 52-55.
The last sentence is not relevant.
14 42, 48 and 71. See 43-45.
15 56-59.
16 61-63 and 71. The 4th and 5th sentences are generally
true, but see 64-67.
17 Although correct (except the value
of the right-of-way, which the weight of the evidence failed to prove), not
relevant to this proceeding.
18 See 21-24. But see 16-20.
19 22 and hereby accepted.
20 47, 68 and hereby accepted.
21 13.
22 74-77.
23 74. The 2d sentence is not supported by the weight of the evidence;
see 80.
24 74. See 25-71. The last two
sentences are not supported by the weight of the evidence.
25 Not supported by the weight of the
evidence. See 19.
COPIES FURNISHED:
Virlindia Doss
Assistant Attorney General
Department of Legal Affairs
The Capitol, Suite 1601
Tallahassee, FL 32399-1050
Mark Herron, Esquire Bonnie J. Williams
J. B. Donnelly, Esquire Executive Director
Akerman, Senterfitt, Eidson Commission on Ethics
& Moffit
The Capitol, Room 2105
216 South Monroe Street Post Office Box 6
Suite 300 Tallahassee, FL 32302-0006
Post Office Box 10555
Tallahassee, FL 32302-2555
NOTICE OF RIGHT TO
SUBMIT EXCEPTIONS
All parties have the right to submit
written exceptions to this Recommended Order.
All agencies allow each party at least 10 days in which to submit
written exceptions. Some agencies allow
a larger period within which to submit written exceptions. You should contact the agency that will
issue the final order in this case concerning agency rules on the deadline for
filing exceptions to this Recommended Order.
Any exceptions to this Recommended Order should be filed with the agency
that will issue the final order in this case.