BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

In re GERALD REHM,

DOAH CASE NO. 91-2830EC

Respondent. COMPLAINT NO. 90-50

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FINAL ORDER AND PUBLIC REPORT

This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on November 13, 1991, by the Division of Administrative Hearings (a copy of which is attached and incorporated by reference). The Hearing Officer recommends that the Commission find that Respondent violated Section 8(e), Article II, of the Constitution of the State of Florida. Respondent filed exceptions.

Having reviewed the Recommended Order, the Respondent's exceptions, and the record of the public hearing of this complaint, and having heard the arguments of counsel for the Respondent and the Commission's Advocate, the Commission makes the following findings, conclusions, rulings and recommendations:

Rulings on Respondent's Exceptions

To Findings of Fact

1. Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 10 of the Recommended Order in which he found that "[a]cquiring right-of-way along the 580/584 Project corridor by eminent domain was inconsistent with the purpose of the Task Force."

The Respondent argues that there is no evidence which indicates that acquisition of right-of-way by other means, including eminent domain, was inconsistent with the purpose of the Task Force. The finding, however, is supported by competent substantial evidence in the record and, therefore, is rejected.

Both parties stipulated (Recommended Order, Finding of Fact No. 7) that the original and primary purpose of the Task Force was to expedite the widening of State Road 580/584. The Task Force pursued this goal by seeking donations of right-of-way along State Road 580/584. (Recommended Order, Finding of Fact No. 7). The acquisition process of eminent domain or purchase typically employed by the Department of Transportation took 18 months to two years. (Hearing Transcript, p. 108 - 109). The goal of the Task Force was to cut those two years out of the process, as had been the goal of another project that Respondent had worked on prior to his being elected as a Representative. (Hearing Transcript, p. 82; See also Advocate's Exhibit No. 4, Respondent's Deposition, p. 8.) Since the Task Force's goal was to speed up the production process by shortening the production schedule by obtaining right-of-way property through donation, the Hearing Officer could properly infer that acquisition of property by eminent domain was inconsistent with the purpose of the Task Force.

As stated by the Court in Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985):

It is the hearing officer's function to

consider all the evidence presented, resolve

conflicts, judge credibility of witnesses, draw

permissible inferences from the evidence, and

reach ultimate findings of fact based on

competent substantial evidence. State Beverage

Department v. Ernal, Inc., 115 So.2d 566 (Fla.

3d DCA 1959). If, as is often the case, the

evidence presented supports two inconsistent

findings, it is the hearing officer's role to

decide the issue one way or the other.

The Hearing Officer was properly fulfilling this function. It is not our function to reweigh the evidence or to attempt to draw different inferences from the evidence as long as there is competent substantial evidence to support the Hearing Officer's finding, as there is here.

2. Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 12 of the Recommended Order. Respondent argues that the Hearing Officer's finding that "[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," misstates the evidence presented at the hearing and, as such, is not based on competent substantial evidence. However, this finding was based on the following portion of the depostion testimony of Paul J. Spina (Advocate's Exhibit No. 5):

Q. Does the task force still exist?

A. I don't believe so, but I don't really

know. Between us, the task force lost all

reason for existence probably midway through

`86. It should have been disolved in `86.

Q. Why wasn't it?

A. I think because the people thought that

as long as we were still going, and still

looking over everybody's shoulder, that maybe

things would get done quicker. The State and

the counties were saying, "We're going to do

this.' I think a lot of people doubted whether

they were going to actually do it or not.

Advocate's exhibit No. 5, Spina Deposition, p. 24. Because there is competent substantial evidence in the record to support the Hearing Officer's finding, Respondent's exception is rejected.

Respondent also argues that from the above excepted-to finding, the Hearing Officer concluded in Part B of his recommended Conclusions of Law that the Task Force through Mr. Rehm violated the proscriptions of Article II, Section 8(e) of the State Constitution. This is a misstatement of the Hearing Officer's conclusion. Respondent's exceptions to the Hearing Officer's recommended Conclusions of Law will be addressed below.

3. Respondent excepts to the Hearing Officer's findings in paragraph 13 of the Recommended Order. Respondent argues that there is no evidence in the record to support the Hearing Officer's finding that "[t]he goals of the Task Force were the goals of those who contributed the Task Force's funds." This exception is rejected because there is competent substantial evidence of record to support the Hearing Officer's finding. See Advocate's Exhibits No.4, Respondent's deposition at pp. 5-7, 14-15; Advocate's Exhibit No. 5, Spina's deposition at pp. 21-22 and 25; Hearing Transcript at pp. 159-160.

4. Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 20 of his Recommended Order where he finds:

The nature of 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 seeking 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.

Respondent also excepts to that portion of paragraph no. 80 of the Hearing Officer's recommended Findings of Fact where he discusses the lack of change in the services provided by Respondent after he was elected a State Representative. These exceptions are rejected because the Hearing Officer's findings are supported by substantial competent evidence in the record. See Advocate's Exhibit No. 5, Spina Deposition at pp. 32-34;

Respondent testified that he was originally approached by a group of land owners and developers to consult for their organization, the Top of the Bay Task Force, and that he continued to act as a consultant after he became a State Representative. See Advocate's Exhibit No. 4, Respondent's Deposition at pp. 4 and 18. Although he testified that the Task Force agreed after he became a State Representative that his time spent working with the Task Force would be more limited, the Department of Transporation District Secretary testified that his contact with the Respondent far was constant. See Hearing Transcript at p. 111. The number of contacts made by Respondent with Department of Transportation personnel which are set forth in the Hearing Officer's recommended Findings of Fact and which have not be excepted to by the Respondent also appeared to be fairly regular. They support the Hearing Officer's finding that Respondent's duties on behalf of the Task Force did not change after he became a State Representative.

When asked whether he informed the Department of Transportation that his role [with the Task Force] would change as a result of his becoming a House member, Respondent testified that he never had a formal working relationship with the Department of Transportation. He saw himself as serving in an "administerial" role gathering public information, assuring its accuracy, and incorporating it onto his map. See Advocate's Exhibit No. 4, Respondent's deposition at p. 19. Respondent's definition of his role does not take away from the Hearing Officer's finding that his activities did not change after he became a State Representative. There was competent substantial evidence in the record to support the Hearing Officer's finding.

As we stated in pararaph 1 above, it is the function of the hearing officer to consider all the evidence presented, to resolve conflicts, to judge credibility of witnesses, to draw permissible inferences from the evidence, and to reach ultimate findings of fact based on competent substantial evidence. It is not our function to reweigh the evidence as long as there is competent substantial evidence to support the Hearing Officer's finding, as there is here.

5. Respondent excepts to paragraph 32 of the Hearing Officer's Recommended Order. Respondent objects to that portion of the finding which indicates that Ms. Dorzback was intimidated by the Respondent's criticisms. The Finding of Fact is as follows:

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.

Respondent argues that Ms. Dorzback's testimony does not support this finding. Respondent argues that the testimony would support a finding that Ms. Dorzback felt intimidated because she "didn't have the full background on the project to explain everything that [she] needed to explain to him in order to resolve the situation." However, Ms. Dorzback testified that she felt intimidated because of Respondent's comments and because of her lack of backgound on the project. See Hearing transcript p. 32. James Kennedy, former District Secretary for the Department of Transportation, also testified that Ms. Dorzback complained to him that Respondent "spoke to her derogatorily." Hearing transcript at p. 112. Because there is competent substantial evidence in the record to support the Hearing Officer's finding and because it is not our function to reweigh the evidence or to re-evaluate the credibility of witnesses, Respondent's exception is rejected.

6. Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 57 of the Recommended Order in which he made the following finding:

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.

Respondent objects to the Hearing Officer's characterization of his contact with Mr. Jones as arguing with him. Mr. Jones testified about his meeting with Respondent as follows:

Q. What happened, what happened at the first

meeting?

A. Well, the first meeting I had received a

telephone call from Mr. Rehm asking about the

Right-of-way on 580, 584. We had some

discrepancies between what I understood we were

needing to build the job and what Mr. Rehm

understood. He came over and we talked about

the requirements. I asked my supervisor, John

Temple, to come in and to explain what was

going on on the right-of-way requirements. I

had only been in the district about a month, 1

was not really aware of it. John came down,

talked briefly. And then Mr. Rehm and myself

went over the right-of-way documents required

to clear the right-of-way interests.

Q. What were the discrepancies that you

mentioned?

A. Width of the right-of-way.

Q. What was the problem with the width, what

was the nature of the discrepancy?

A. I'm not really sure whether we had a

discrepancy in width or whether it was width

and the side it was on.

And what was your position on that

discrepancy?

A. I didn't have one, I had just gotten into

the district. All I had was the PD&E study to

look at.

Q. And what did Mr. Rehm say to you?

A. He just indicated that that was not what

he understood the requirements were supposed to

be.

Hearing transcript, pp.100-101.

Although we do not believe that the particular characterization of the discussion between Mr. Jones and Respondent is either material to the issues in this case or prejudicial to the Respondent, because Mr. Jones testified that he had no position with respect to the discrepancy between what Mr. Jones understood the Department of Transportation was needing for right-of-way and what Mr. Rehm understood, we believe that the Hearing Officer's characterization of their discussion as an argument was too strong. Therefore, we accept Respondent's exception, and modify the Hearing Officer's finding as follows:

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 discussed their different

understandings of the width of the right -of

way needed for the 580/584 Project. Their

difference of opinion was clarified by Mr.

Jones' supervisor.

In doing so, we find that there was a lack of competent substantial evidence to support the Hearing Officer's finding that Respondent and Mr. Jones argued.

7. Respondent excepts to the Hearing Officer's Finding of Fact in paragraph 79 of the Recommended Order. Respondent argues that by concluding that "[t]he 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," the Hearing Officer was reaching a conclusion of law which impermissibly placed the burden of proving the compensation issue on Mr. Rehm. This exception has no merit and, therefore, is rejected.

In paragraphs 73 through 77 of the Hearing Officer's recommended Findings of Fact, which the Respondent has not filed exceptions to, the Hearing Officer found that from 1985 until November 1986, the Respondent was paid a consulting fee for his services as Executive Director of the Task Force and that following his election in November 1986, the Task Force made payments to the Respondent's closely held corporation, Gerald S. Rehm and Associates, Inc. The Hearing Officer also found that from 1985 until 1987, the Task Force paid $2,000 a month to the Respondent and later to Gerald S. Rehm and Associates, Inc., and that in 1987, this amount was increased to $3,000 per month, at which time, Mr. Rehm's corporation began "absorbing expenses." Finally, in paragraph 80 of the Hearing Officer's recommended Findings of Fact, the Hearing Officer found that only $1,000 of the $3,000 monthly payments were for expenses. No exception to this finding was made by Respondent either. There was competent substantial evidence in the record on which the Hearing Officer could base these findings.

Paragraph 79 of the Hearing Officer's Findings of Fact is the Hearing Officer's finding based upon the testimony presented by the Respondent, which the Hearing Officer in fulfilling his function may properly reject, as he has here. "Although the record may contain evidence contrary to the hearing officer's findings, neither the agency head nor a reviewing court may overturn a finding of fact that is supported by competent substantial evidence." Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 475 So.2d 1277, 1283 (Fla. 1st DCA 1985).

Rulings on Respondent's Exceptions

To Conclusions of Law

8. Respondent excepts to portions of Part B of the Hearing Officer's recommended Conclusions of Law, and particularly to the Hearing Officer's conclusions that Respondent was "representing" the Task Force before the Department of Transportation and was "compensated" by the Task Force. With respect to the issue of "representation," Respondent argues that he sought no action from the Department of Transportation other than public information that any citizen and taxpayer would be entitled to receive, he did not advocate any alignment for the project, he did not seek an award of any privilege, license, or contract, and he contacted the Department of Transportation in order to present a map to them which reflected the information which he had distilled from public record sources as well as from private sector interests regarding various transportation projects in Northern Hillsborough and Pinellas Counties. Respondent argues that the question that we must decide here is whether Article II, Section 8(e), Florida Constitution, establishes a prophylactic barrier between a member of the Legislature and employees of a state agency, with respect to any matter for which the member of the Legislature may be receiving compensation. However, under the facts as found by the Hearing Officer, we do not believe that we need to render such an opinion, and we decline to do so.

The Hearing Officer found that the terms "represent" or "representation" as defined in Section 112.312(17), Florida Statutes, specifically apply to the use of such terms under Section 8(e), Article II, Florida Constitution. However, Section 112.312(17), Florida Statutes, only was made specifically applicable to this State constitutional provision in October 1991 by Chapter 91-85, Laws of Florida. Thus, to the extent that the Hearing Officer's Conclusions of Law differ from the Conclusions of Law as stated herein, they are so modified.

In CEO 77-168, after analyzing the intent behind Section 8, Article II, we discussed the meaning of the term "represent" using rules of constitutional interpretation in the process. We stated:

[I]t is presumed that words appearing in the

Constitution have been used according to their

natural and popular meaning as usually

understood by the people who have adopted them.

Therefore, the words in a Constitution should

be construed in their plain, ordinary, and

commonly accepted meaning unless the text

suggests that they have been used in a

technical sense. 6 Fla. Jur. Constitutional

Law s. 26 (1963), citing among others, State ex

rel West v. Butler, 69 So. 216 (Fla. 1914), and

Wilson v. Crews, 34 So.2d 114 (Fla. 1948). In

this regard we note that Webster's New

Collegiate Dictionary (1973) defines

"represent" as "to take the place of in some

respect" or "to act in the place of or for usu.

by legal right." Similarly, Black's Law

Dictionary (4th ed., 1957) defines "to

represent" as "to stand in his place; to supply,

his place; to act as his substitute.

Therefore, a legislator who is acting in behalf

of his client in contacting a state agency

would be representing that client in a matter

before that agency as the term "represent"

seems to be commonly understood.

We also quoted the definition of "represent" as defined at Section 112.312(15), Florida Statutes (presently Section 112.312(17), Florida Statutes), to indicate that although that definition was applicable to the full and public disclosure requirements of Section 8, Article II, the definition was consistent with the scope given to that term by other states in similar ethics laws.

Respondent argues, however, that his activities on behalf of the Task Force were essentially no different from the activities that we found were permitted in CEO 82-83. There we found that the filing of Articles of Incorporation or documents under the Uniform Commercial Code by a legislator with the Department of State presented no opportunity for a legislator/lawyer to misuse the influence of his public office, and no appearance of improper influence. We found that the filing of such documents is a routine ministerial matter for the Department of State. Assuming that the detailed statutory requirements for articles of incorporation were met, the Department of State had no discretion to refuse to file those articles. Likewise, filings under the Uniform Commercial Code were found to be routine, ministerial functions, leaving the State agency with no discretion to take any action which could benefit the client of the legislator/attorney.

Although Respondent characterizes his activity as requests for public information, the Hearing Officer concluded based on the evidence as follows:

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.

Recommended order at p. 23. The Hearing Officer also concluded that "the Respondent engaged in activities intended to promote the goals of the Task Force and were not merely routine, ministerial matters required by law." Recommended Order at p. 24. We find that because there was substantial competent evidence in the record upon which the Hearing Officer could reach this conclusion, it is not necessary for us to determine whether or what kinds of requests for public information may be permissable under Section 8(e), Article II, Florida Constitution.

9. Without providing any further argument than he made in his exception to the Hearing Officer's recommended Finding of Fact in paragraph 79 of the Recommended Order, Respondent excepts to the Hearing Officer's conclusion that he was "compensated" by the Task Force . For the reasons stated in our response to Respondent's exception (paragraph 7 above), Respondent's exception is rejected.

Findings of Fact

The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference except as modified above.

Conclusions of Law

1. In the Conclusions of Law as set forth in the Recommended Order with respect to jurisdiction and burden of proof (Part A of the Conclusions of Law in the Recommended Order), when discussing the "affirmative" that the Commission's advocate has the burden of proving, the Hearing Officer inadvertently cited Section 8(f), Article II, of the Constitution of the State of Florida, rather than Section 8(e), Article II, of the Constitution of the State of Florida. With this correction, this recommended Conclusion of Law is approved, adopted, and incorporated herein by reference.

2. In Part B of his recommended Conclusion of Law where the Hearing Officer discussed whether Respondent's representation was before a state agency other than a judicial tribunal, he concludes that the Department of Transportation comes within the definition of "agency" at Section 112.312(2), Florida Statutes, as that term is used in Section 8(e), Article II, Florida Constitution. However, as noted above, the definitions within Section 112.312 were only recently made applicable to Section 8, Article II as a whole by Chapter 91-85, Laws of Florida. We accept Section 112.312(2), Florida Statutes, as a commonly accepted definition of "agency" and modify the Hearing Officer's recommended conclusion to that extent. In doing so, we note that there does not appear to be any dispute that the Department of Transportation is a state agency, and no exception was made to the Hearing Officer's use of Section 112.312(2) to reach his conclusion. Therefore, the Conclusions of Law set forth in the Respondent's Alleged Violation of Section 8(e), Article II, of the Constitution of the State of Florida (Part B of the Conclusions of Law in the Recommended Order), except as modified here and in the rulings on Respondent's exceptions, are approved, adopted, and incorporated herein by reference.

3. The Conclusions of Law as set forth in Part C (Penalty) of the Hearing Officer's Recommended Order are approved, adopted, and incorporated by reference.

Accordingly, the Commission on Ethics finds that the Respondent, Gerald S. Rehm, as a State Representative violated Section 8(e), Article II, of the Constitution of the State of Florida, as described herein, and issues this as its Final Order and Public Report.

ORDERED by the State of Florida Commission on Ethics meeting in public session on Friday, January 24, 1992.

January 29, 1992

Date

_____________________________

Dean Bunch

Chairman

YOU ARE NOTIFIED THAT YOU ARE ENTITLED, PURSUANT TO SECTION 120.68, FLORIDA STATUTES, TO JUDICIAL REVIEW OF AN ORDER WHICH ADVERSELY AFFECTS YOU. REVIEW PROCEEDINGS ARE COMMENCED BY FILING A NOTICE OF ADMINISTRATIVE APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, AND ARE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

cc: Mr. Mark Herron and Mr. J. B. Donnelly,

Attorneys for Respondent

Ms. Virlindia Doss, Commission Advocate

Ms. Pat Imperato, Complainant

Division of Administrative Hearings