STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: HUGH HARLING, )

) CASE NO. 92-4941EC

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark held a formal hearing in the above-styled case on April 27 and 28, 1993, in Orlando, Florida.

APPEARANCES

For Petitioner: Virlindia Doss, Esquire

Department of Legal Affairs

PL-01, The Capitol

Tallahassee, Florida 32399-1050

For Respondent: Michael L. Gore, Esquire

Ken Wright, Esquire

Shutts & Bowen

20 North Orange Avenue, Suite 1000

Orlando, Florida 34801

Bruce Minnick, Esquire

Mang, Rett and Collette, P.A.

Post Office Box 11127

Tallahassee, Florida 32302-3127

STATEMENT OF THE ISSUES

In an order dated July 24, 1991, the Florida Commission on Ethics found probable cause that Respondent violated sections 112.3143(2)(b) and 112.3143(3), F.S. by twice participating in, and voting on measures (land use changes) which inured to his special private gain or to the special gain of a principal by whom he was retained.

The issue is whether those violations occurred, and if so, what penalty is appropriate.

PRELIMINARY STATEMENT

On August 10, 1992, the Commission on Ethics referred the case to the Division of Administrative Hearings for a public hearing and proposed recommended order.

At the hearing, the Advocate for the Commission presented the testimony of Frances Chandler, William Pardue and Joan Cerretti-Randolph. Advocate's exhibits #1-7, 9, and 11-20, including a deposition of Charles Clayton, were received in evidence without objection. Exhibits #8 and #10 were not offered.

Respondent testified in his own behalf, and presented the additional testimony of Fred Streetman, James Stelling, Jim Weinberg, H.W. Bill Suber, and Malcolm Clayton. Respondent's exhibits #1-15 were received in evidence without objection.

The transcript of hearing was filed, and both parties presented thorough proposed recommended orders. These have been considered, and specific rulings on the findings of fact are found in the attached appendix.

FINDINGS OF FACT

The Respondent

1. The Respondent, Hugh W. Harling, Jr. (Harling, or Respondent) is a Florida registered professional engineer and majority owner of Harling, Locklin and Associates, a firm which he established in 1979. The firm's office is located in Orlando and most of its work is done in the east central area of the state.

2. Harling has a long history of public service. He was director of utilities for the City of Titusville from approximately 1968 until 1972, and during that time was chairperson of the Brevard County Utility Steering Committee. At various times he served as mayor of the City of Altamonte Springs (1980); and on myriad local boards and committees, including the Orange County Underground Utilities Examining Board, City of Altamonte Springs Utility Rate Review Committee, Seminole County Transportation Planning Committee, City of Altamonte Springs Citizen Advisory Committee and Land Use Update Committee. Since 1984, he has served on the Code Enforcement Board for Seminole County.

The South Central Citizens Advisory Committee

3. Pursuant to legislative mandate, counties in Florida are required to maintain a comprehensive plan which includes, among other elements, the land uses throughout the county. In 1987 Seminole County began its 10-year update process for the 1977 comprehensive plan.

4. Desiring effective citizen participation, the Seminole County Board of County Commissioners created citizen advisory committees corresponding to five geographical regions of the county. Guidelines for the comprehensive plan update process established by Seminole County describes the citizen advisory committees (CAC) as follows:

Citizen Advisory Committees (CAC) - are

comprised of individuals representing various

interests within a specific geographic area of

the County. The role of the CAC is to review,

evaluate County-wide policies and assumptions,

identify special issues within the sub-planning

area, and make recommendations on preliminary

Plan policies, land use maps and programs.

(Respondent's #10, p.9)

5. Individuals were selected to serve on the committees based on their interests or discipline in the following areas: homeowners, environment, development, technical resource, agriculture, business/industry and property owners (undeveloped). Harling was appointed to the South Central CAC as a "technical resource" member, and served as the committee chairperson.

6. Weekly meetings began in December 1986 and continued until June 1987. The process was considered by county staff to be "fast track", with a lot of material to be covered in an abbreviated time. Thus, a mass of information was presented by county staff to the committee: maps, handouts and staff recommendations as to proposed land use changes in the geographical area covered by the committee.

7. Concurrently with the citizen advisory committee review, the county conducted an "open amendment" process, allowing citizens to request amendments to the future land use maps without having to pay the normal application fee. The applications for these amendments were processed during the course of the entire adoption process for the comprehensive plan update. These citizens' requests were presented to the advisory committees by county staff in summary form, with the staff recommendation. The applications were not presented to the committee, nor were committee members provided with advance notice of items coming before them each week.

8. At the direction of county staff, action by the committee was taken by motion and vote of the members, duly recorded and made available to the county commission. This procedure differed from Harling's previous experience on the comprehensive plan review committee for the City of Altamonte Springs where the members discussed their views and sought a consensus without a formal vote. The Seminole County committee members were told that a record of votes would enable the county commissioners to determine how the various represented interests took sides on the issues.

9. In contrast to his participation on the Seminole County Code Enforcement Board, Harling understood that voting in this committee would not require disclosure of conflicts. Other members of the committee had the same understanding based on statements by county staff. Since the committee itself was comprised of competing, conflicting interests, including property owners who voted on items affecting their property, conflict was inherent to the work of the committee.

The Policy Steering Committee

10. Under the Seminole County citizen involvement guidelines, recommendations of the five CACs were referred to a single policy steering committee (PSC) comprised of representatives from the CACs and the Local Planning Agency (the Seminole County Planning and Zoning Board). The purpose of the PSC was to ". . . receive and evaluate the recommendations of the various committees, ensure consistency between plan elements, and make final recommendations to adopting boards." (Respondent Ex. #10, p.9)

11. Respondent Harling was selected from the South Central CAC to be one of the committee's two representatives on the PSC.

12. The PSC meetings involved not only conflicting policy recommendations from the CAC's but a review of land uses for all of Seminole County. As in the CAC's, votes were taken and recorded, and the members were not informed of any need to disclose interests. Nor were the members provided information on ownership of specific parcels presented for review. There were hundreds of requests for land use amendments identified by alphabetical letters, but there was no attempt even by county staff to keep track of who owned what.

The Arborio/Clayton Parcel

13. One such request for change of land use involved a parcel located in south central Seminole County comprised of a 40-acre tract on the south side of State Road 426 (Aloma Avenue), and a 100-acre tract along the north side of State Road 426. The two tracts belonged to the Arborio family in New York. In the mid-80's, one family member sold a 25 percent interest to Malcolm and Charles Clayton, cousins with almost fifty years' experience in real estate and development in central Florida.

14. On February 17, 1987, the Claytons, representing themselves and the Arborios, filed a request to change the land use designation from "general rural" to "commercial/multi family". The reason for the request was to avoid a lengthy "red tape" delay in the future when the land was ready to develop. A change in land use designation at this stage of the county plan update would save time for the owner/developer later when the zoning needed to be changed.

15. Although the route had not been finally determined at that point, there was reasonable anticipation that the parcels would be transected by an expressway extension.

16. Land use designation is one of many factors used to determine the value of a particular piece of property. The owners stood to gain or lose by the change in the land use designation.

Votes on the Parcel

17. The Clayton's request for land use change was presented to the South Central CAC on June 3, 1987, along with several other requests for changes. The county staff recommended commercial use east of the expressway and medium density residential use north and west of the expressway as depicted on map #19, presented to the committee.

The committee, including Respondent Harling, voted unanimously to recommend medium density residential west of the expressway and office use east of the expressway. Map #19 does not reflect the location of the expressway.

18. Map #19 does not identify owners of any of the parcels depicted and Respondent Harling was not aware of the Clayton's ownership interest at the time of the vote. He did not file a conflict disclosure memorandum.

19. The South Central CAC's recommendation was considered by the PSC at its final meeting on July 30, 1987, along with other land use change requests from this and the other four regional CAC's. The Clayton request was considered in the process of reviewing "Map 0" (formerly "Map 19"). Map 0 shows the expressway extension as a heavy black line running north to northeast through the Clayton/Arborio parcel. References to "Maps O, E, and D" in the PSC minutes correspond to the intersection of the expressway and Aloma Avenue on Map 0.

20. Respondent Harling made the motion to recommend all three parcels to be higher intensity planned unit development. The motion carried 10-2.

21. Higher intensity planned unit development (HIP) was a new land use category developed during the 1987 comprehensive plan update. It is a mixed use category that allows for a mix of uses (residential, commercial, office, industrial), but requires planned unit development zoning or planned commercial development zoning in order to develop. Any of the permitted uses are potentially conditional uses which would have to go through a planned unit development process. Unlike conventional planned unit development use which required a master plan at the time the comprehensive plan was amended, the HIP designation allowed a mixed use land use category to be placed on the map without a master plan. The HIP use was designed for use at expressway interchanges where higher intensity development was anticipated or wanted.

22. There was no discussion at the July 30, 1987 meeting of who owned parcels O, E and D, and Respondent Harling was not aware of the Clayton's ownership interest at the time that he participated in and voted on the measure before the PSC. He did not disclose any interest in the property and did not file a disclosure memorandum.

Harling's Relationship with the Claytons

23. For over ten years, Harling, Locklin and Associates has provided professional services to Charles and Malcolm Clayton. The Harling firm is not on retainer; separate contracts for services are entered for particular engagements on particular projects. The Claytons also utilize numerous other engineering firms.

24. Harling's firm routinely collects information of a general nature unrelated to a specific project or particular engagement. This information includes flood plain elevations for the entire state, traffic count information, plans for road expansion, zoning and other information of interest to the real estate and development community. Frequently, the firm is contacted for that and other technical information, and as long as the system is not abused, the information is provided gratis. In some instances the firm responds to an inquiry, and gathers and shares the information in the hopes that an engagement will result from its effort.

25. The Claytons utilized this retrieval system with Harling's and other firms. Experienced and careful businessmen, the Claytons most often sought information without disclosing their interest in a parcel or their intended use of the information.

26. Although an employee of Harling, Locklin & Associates may "pull a job number" for work performed for a potential client that was not attributable to a current contract, the time is billed to the client later only when and if a contract is entered into for professional services. Through this method, promotional work done by the firm is in some circumstances recovered by those projects which eventually go to contract.

27. In late May, early June, 1987, Charlie and Malcolm Clayton met with Harling and asked questions relating to a limited access map prepared for the Orlando/Orange County Expressway Authority. The map showed the location of limited access fencing in the area of the intersection of the proposed expressway and State Road 426 (Aloma Avenue). The Claytons did not identify for Harling their interest in the property, or the purpose for which they sought the information. The map shown to Harling did not identify the Claytons as having any interest in the property, nor did Harling have any specific knowledge of the exact location of the particular piece of property, other than along Aloma Avenue. The Claytons also asked similar questions of at least one other engineering firm.

28. In follow up to the meeting with the Claytons, Harling also met with a representative of the Expressway Authority to confirm his interpretation of the limited access map, and to verify the information he had given to the Claytons. Through the office system utilized by Harling, Locklin & Associates, the time spent by Mr. Harling was attributed to the job number established for the dealings with the Claytons concerning property on Aloma Avenue, but no contract then existed and there was no reasonable expectation that Harling, Locklin & Associates would be compensated for the time in the future.

29. During this same time period, Charles and Malcolm Clayton met with Joan Cerretti-Randolph, a Harling, Locklin & Associates employee, concerning property along Aloma Avenue. The amount of work requested of Ms. Ceretti-Randolph by the Claytons was consistent with promotional work done in the past by Harling, Locklin & Associates, and was done initially on a gratis basis.

Ms. Cerretti-Randolph was not advised what, if any, the Claytons' interest was in the property in question, or whether there would be a contract executed on any particular job involving the Claytons and concerning the property now referred to as the Clayton/Arborio parcel.

30. A contract was entered into by Harling, Locklin & Associates, the Arborio family, and the Claytons in October, 1987. The contract was not initiated by the Claytons, but was initiated by David Foerster, a condemnation attorney from Jacksonville who represented various landowners, including the Claytons and Arborios, in condemnation actions brought by the Expressway Authority at the time the various parcels were condemned for the construction of the expressway.

31. At the time of the meetings of the South Central CAC in June, 1987, and of the PSC in July, 1987, Harling, Locklin & Associates was not under contract with the Claytons or the Arborios (or Mr. Foerster) to render services concerning the parcels of property in question.

32. At the conclusion of the condemnation action concerning the taking of a portion of the parcels for construction of the expressway, Harling, Locklin & Associates submitted an invoice for services rendered which included time expended, originally as promotional work, for the Claytons in spring and summer, 1987. Some work reflected on the bill was done in May through July of 1987, at a time when Harling was unaware of the interest of the Claytons in the property, or the specific location of the property about which the Claytons were inquiring.

Summary of Findings

33. Harling's participation and votes as a member of the South Central CAC and later, PSC, are uncontroverted. These committees, or citizens groups were integral to the public participation component of the ten-year plan update. As a seasoned member of similar, as well as more formal bodies, Harling was well aware of his responsibilities to disclose conflicts. He and other members of the CAC and PSC were misled, however, by county staff or commission members, as to the nature of the committee and the need to disclose.

34. It is also uncontroverted that specific votes, on June 3, 1987 and July 30, 1987, were on property owned, in part, by the Claytons. Although Harling and his staff had been consulted by the Claytons with regard to the parcel, at the time of the votes, the Claytons had not disclosed their ownership interest in the property; their contacts were in the nature of information-gathering and the professional relationship was not formalized until October 1987.

35. The land use changes voted by the CAC and PSC as recommendations for the Arborio/Clayton parcel were not those sought by the applicant, but still positively benefited the owners. The change from "general rural" during the plan update process substantially abbreviated the local approval process required before the property is actually developed. The HIP designation, while still requiring approval of a master plan later, would provide flexibility for the owners/developers to plan for the uses being sought by the Claytons in their February application. A land use designation, though not a controlling or even substantial influence on valuation of a parcel, is still considered by a property appraiser in fixing that valuation.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has jurisdiction with regard to the parties and subject matter in this proceeding, pursuant to section 120.57(1), F.S. and Florida Commission on Ethics rule 34-5.010, F.A.C.

37. The Advocate, asserting the affirmative of the issue, has the burden of proving the violations of sections 112.3143(2)(b) and (3), F.S. by a preponderance of the evidence. Department of Transportation v. J.W.C., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); In re Michael Langton, 14 FALR 4175, 4178 (1992); In re: Leo C. Nichols, 11 FALR 5234 (1989).

That burden has not been met in this case.

38. The pertinent provisions of section 112.3143, F.S., in effect at the time of the alleged violations (1985 statutes, as amended in 1986) are:

112.3143 Voting conflicts.-

(1) As used in this section, the term

"public officer" includes any person elected

or appointed to hold office in any agency,

including any person serving on an advisory

body.

. . .

(2)(b) No appointed public officer shall

participate in any matter which inures to his

special private gain or the special gain of

any principal by whom he is retained, without

first disclosing the nature of his interest in

the matter. Such disclosure, indicating the

nature of the conflict, shall be made in a

written memorandum filed with the person

responsible for recording the minutes of the

meeting and shall be incorporated in the

minutes; if the disclosure is initially made

orally at a meeting attended by the officer,

the written memorandum disclosing the nature

of the conflict shall be filed within 15 days

with the person responsible for recording the

minutes of the meeting and shall be

incorporated in the minutes. A copy of such

memorandum, which shall become a public record

upon filing, shall immediately be provided to

the other members of the agency and shall be

read publicly at the meeting prior to the

consideration of the matter. For purposes of

this paragraph, the term "participate" means

any attempt to influence the decision by oral

or written communication whether made by the

officer or at his direction.

(3) No county, municipal, or other local

public officer shall vote in his official

capacity upon any measure which inures to his

special private gain or shall knowingly vote

in his official capacity upon any measure

which inures to the special gain of any

principal, other than an agency as defined in

s. 112.312(2), by whom he is retained. Such

public officer shall, prior to the vote being

taken, publicly state to the assembly the

nature of his interest in the matter from

which he is abstaining from voting and,

within 15 days after the vote occurs,

disclose the nature of his interest as a

public record in a memorandum filed with the

person responsible for recording the minutes

of the meeting, who shall incorporate the

memorandum in the minutes . . .

(emphasis added)

39. By the plain language of section 112.3143(1), F.S. Respondent Harling, as a member of the South Central Citizens Advisory Committee and Policy Steering Committee, was a "public officer". This conclusion is supported by a series of Commission on Ethics opinions (CEO) addressing the applicability of sections 112.3143 and 112.3145, F.S. to a variety of local advisory bodies. See, for example, CEO 87-82, CEO 88-3, CEO 89-25 and CEO 89-16, cited in the Advocate's proposed conclusions of law.

40. Respondent Harling voted and participated in the consideration of measures benefiting the Clayton's interest. He did not file a conflict disclosure memorandum. His failure, however, is excused by the facts, as found above, that he was unaware of the Clayton's interest in the measures at the time of the votes and that he was not retained by the Claytons (or their attorney) until several months after the votes. The Advocate's argument that Harling knew or should have known of the Clayton's interest and that even without a contract, he was "retained" by them is based upon circumstantial evidence. Harling's explanation of the circumstances was clear and credible. It was also supported by clear and credible testimony of his own and the Advocate's witnesses.

RECOMMENDATION

Based on the foregoing, it is hereby,

RECOMMENDED:

That the Commission on Ethics enter its final order and public report finding that Hugh Harling did not violate sections 112.3143(2)(b) and (3), F.S. (1985 and 1986 Supp.), and dismissing the complaint at issue.

DONE AND RECOMMENDED this 24th day of September, 1993, in Tallahassee, Florida.

___________________________________

MARY CLARK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of September, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4941EC

The following constitute specific rulings on the findings of fact proposed by the parties:

The Advocate's Findings

1. Adopted in paragraph 1.

2. Adopted in paragraphs 5 and 11.

3. Adopted in paragraph 2.

4. Adopted in paragraph 3.

5. Adopted in paragraph 4.

6. Adopted in paragraph 5.

7. Adopted in paragraph 6.

8. Adopted in paragraph 7.

9. Adopted in paragraph 14.

10.-11. Adopted in substance in paragraph 13.

12. Rejected as unnecessary.

13.-14. Adopted in paragraph 14.

15. Adopted in substance in paragraph 14.

16.17. Adopted in substance in paragraph 17.

18.25. Rejected as unnecessary. To the extent that those

facts are proposed to establish a motive by

Respondent to benefit his "principal", that

proposal is expressly rejected as contrary to the

greater weight of evidence.

26.-27. Adopted in substance in paragraph 16.

28. Rejected as unnecessary. Moreover, the Pardue

testimony was confused, as he said on one hand that

he was not concerned with the north side (p.52, 11.

19-21), and it is not clear at p.53, ll. 22-24

whether he was addressing the north or south

parcel.

29.-30. Rejected as unnecessary.

31. Adopted in paragraph 16.

32. Adopted in paragraph 17.

33. Rejected as unnecessary.

34. Adopted in paragraphs 17 and 18.

35. Adopted in paragraph 19.

36. Adopted in paragraphs 10 and 11.

37. Rejected as unnecessary.

38. Adopted in paragraph 19.

39. Adopted in substance in paragraph 19.

40. Rejected as unnecessary. The evidence cited is

confusing, as the recommendation by staff and vote

by the CAC is a little different on another

document.

41. Adopted in paragraph 20.

42. Rejected as unnecessary. Moreover, the evidence

supporting this proposed finding is too confused to

be reliable.

43.-44. Adopted in paragraph 21.

45.-46. Rejected as cumulative or unnecessary.

47. Advocate in paragraph 16.

48. Adopted in paragraphs 20 and 22.

49. Rejected as unnecessary.

50. Rejected as contrary to clearer, more credible

evidence. Charles Clayton's testimony was rambling

and disjointed. Malcolm Clayton more plainly

testified that the property was discussed in 1987

and the ownership interest was not disclosed to

Harling. (transcript, pages 238-239.)

51. Rejected as unnecessary. Moreover the dates and

time sequence provided by Charles Clayton were not

reliable and conflicted with other competent

evidence.

52.-55. Rejected as unnecessary.

56. Rejected. Although an accurate statement of

Pardue's testimony, the underlying fact is rejected

as contrary to the weight of evidence.

57. Adopted in paragraph 29.

58. Rejected as argument and substantially unsupported

by the weight of evidence.

59. Rejected as argument.

Respondent's Proposed Findings

1.-2. Rejected as unnecessary.

3. Adopted in paragraph 1.

4. Adopted in paragraph 3.

5. Adopted in paragraphs 3 and 4.

6. Adopted in paragraph 4.

7. Adopted in paragraph 5.

8. Adopted in paragraphs 4 and 5.

9.-10. Adopted in substance in paragraph 2.

11.-13. Rejected as unnecessary.

14. Adopted in substance in paragraph 9.

15. Rejected as unnecessary.

16. Adopted in paragraph 6.

17. Adopted in substance in paragraph 33.

18. Adopted in substance in paragraph 7.

19. Rejected as unnecessary.

20. Adopted in paragraph 8.

21.-22. Rejected as cumulative and unnecessary.

23. Adopted in substance in paragraph 13.

24. Adopted in substance in paragraph 17.

25.-26. Rejected as cumulative and unnecessary.

27. Adopted in paragraph 17.

28. Rejected as cumulative and unnecessary.

29. Adopted in paragraph 17.

30. Adopted in paragraph 34.

31.-32. Adopted in paragraph 10.

33. Adopted in paragraph 11.

34. Adopted in paragraph 12.

35.-36. Rejected as unnecessary.

37. Adopted in substance in paragraph 12.

38.-39. Adopted in substance in paragraph 19.

40. Adopted in substance in paragraph 20.

41. Adopted in substance in paragraph 34.

42. Adopted in substance in paragraph 21.

43.-46. Rejected as unnecessary.

47.-48. Rejected as unnecessary and contrary to the weight

of evidence (as to the change not benefiting the

landowners).

49.-51. Adopted in paragraph 23.

52.-53. Adopted in paragraph 24.

54. Adopted in paragraph 26.

55. Adopted in paragraph 27.

56. Adopted in paragraph 28.

57.-58. Adopted in paragraph 29.

59. Adopted in paragraph 30.

60. Adopted in paragraph 31.

61. Adopted in paragraph 32.

COPIES FURNISHED:

Bonnie Williams, Executive Director

Ethics Commission

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Phil Claypool, General Counsel

Ethics Commission

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Virlindia Doss, Esquire

Department of Legal Affairs

PL-01, The Capitol

Tallahassee, Florida 32399-1050

Michael L. Gore, Esquire

Ken Wright, Esquire

Shutts & Bowen

20 North Orange Avenue, Suite 1000

Orlando, Florida 34801

Bruce Minnick, Esquire

Mang, Rett and Collette, P.A.

Post Office Box 11127

Tallahassee, Florida 32302-3127

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.