BEFORE THE
STATE OF FLORIDA
COMMISSION ON ETHICS
In re MICHAEL E. LANGTON,
Complaint No. 90-86
Respondent. DOAH CASE NO.: 91-3367EC
___________________________/
FINAL ORDER AND PUBLIC
REPORT
This matter came before the Commission on Ethics on the Recommended
Order rendered in this matter on November 27, 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 the Respondent violated Sections
112.313(8) and 112.3141(1)(c), Florida Statutes, and 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
1. The Respondent excepts to the
Hearing Officer's Conclusion of law in the Recommended Order numbered "B.
2." Although the Respondent's
summary of this conclusion states, "That conclusion may be summarized as
holding that Mr. Langton violated the `Sunshine Amendment,' Section 8(e)
Article II of the Florida Constitution, and the Code of Ethics for Public
Officers and Employees, Section 112.3141(1)(c), Florida Statutes," that
conclusion is actually summarized in the Recommended Order as follows: "Based upon the foregoing, it is
concluded that the Parmer Call, the Frohock Contact, the Meeting, the Burnside
Contact, the Ganson Contact, the Pelham Contact and the Jones Contact all
constituted representation by the Respondent on behalf of another person or
entity." (Recommended Order, page
47). The Respondent appears to be
excepting to the Hearing Officer's conclusion that the Respondent's contacts
with DCA constituted "representation" of another person or entity.
Particularly, the Respondent argues that "representation" by
the Respondent was dependent on the Respondent having a "client," and
that, consequently, the Hearing Officer improperly broadened the meaning of the
quoted terms in concluding that the Respondent's wholly owned corporation was
the person or entity he represented before the DCA. Further, the exception argues that the Hearing Officer improperly
relied on CEO 81-24 in making his conclusion.
As was pointed out by the Hearing Officer, the statutory definition of
"represent" found in Section 112.312(17), Florida Statutes, must be
considered in terms of the express language of the Constitutional section and
statutory section prohibiting representation; the terms "person" and
"entity" found therein clearly encompass fictitious persons and
business entities such as Langton Associates, Inc.--the Respondent's wholly-owned
corporation. If the Legislature had
intended to restrict what would constitute "another person or entity"
to a possible subclass that would include only "clients," it would
have done so by defining "another person or entity" rather than by
defining the term "represent."
The term "represent" initially was defined for purposes of the
quarterly "client" disclosure requirements of section 112.3145,
Florida Statutes, in 1975, well before the Constitutional or statutory
prohibitions at issue here. Further,
the term "client," under its plain and ordinary definitions, has
broader meaning than that given it by way of example in CEO 81-24. In addition, it is well settled under
corporate law that, with rare exception, a corporation is a separate legal
entity or legal person from the natural person who owns or incorporates it. Moreover, in addition to recognizing the
distinction between a corporate entity and its owner for purposes of finding a
violation of the Code of Ethics or a prohibited conflict thereunder, we have
recognized that distinction in exonerating respondents or in not finding
prohibited conflicts. See, for example,
CEO 91-7, wherein we found that a school board member would not be in violation
of Section 112.313(7), Florida Statutes, were his corporation to contract with
a business entity which was doing business with the school board. Also, the statutory definition of
"represent," to the extent, if any, that that definition will not
support a finding of representation under the Constitutional section charged in
this matter, was only made applicable to the Constitutional setion by Chapter
91-85, Laws of Florida, and thus was not applicable at the time of the
Constitutional violations found herein.
The Respondent further argues, regarding the Hearing Officer's
conclusion that the contacts with DCA constituted "representation,"
that in order for an entity to be represented before a state agency that entity
must have an interest before the agency, and that neither Langton Associates,
Inc. nor the local governments to which it provided services had an interest
before DCA.
There are findings of fact made by the Hearing Officer based upon
competent, substantial evidence that would support a conclusion that Langton
Associates, Inc. and the local governments to which it provided services had
interests before DCA, including findings of fact 82, 88, 89, 70, 71, 90, 91,
92, 93, 114b, 117, 118, 125b, 130, and 140.
Regarding the Respondent's argument that "Langton Associates, Inc.,
and Michael E. Langton are, but for a ministerial statutory corporate filing,
one and the same," it is noted, as previously stated in the response to
this exception, that a wholly-owned corporation can be a separate entity for
purposes of the law relating to representation before State agencies. In addition, the Hearing Officer
specifically concluded that some, although not all, of the Respondent's
contacts with DCA were made on behalf of clients of Langton Associates.
Additionally, the Respondent argues that the case of Blackburn v. State
of Florida, Commission on Ethics, 18 FLW 02894 (1st DCA, November 15, 1991),
would prevent a conclusion that the Respondent violated the Constitutional and
statutory representation provisions at issue herein, unless the activities
under scrutiny were for the sole purpose of violating those provisions.
Blackburn is inapplicable to
the Respondent's representation charges because it involved a local government
official accused of misuse under Section 112.313(8), Florida Statutes, a far
different provision than those at issue for the Respondent, and because the
Blackburn court specifically limited its holding to the facts of that
case. A finding by us that a Legislator
could escape the proscriptions of Section (8)(e), Article II of the State
Constitution, and Section 112.3141(1)(c), Florida Statutes, by relying upon a
supposed legislative purpose for all of his contacts with State agencies would
only serve to strip those provisions of all meaning and significance.
Further, our Public Report in In Re JOHN RENKE, Complaint No. 88-52,
cited by the Respondent, is inapplicable to the Respondent's situation because
in that matter we found that there was no probable cause to believe that
Representative Renke's representation had been "for
compensation." In contrast, in the
matter currently before us, the Hearing Officer has found, based upon
competent, substantial evidence, that the Respondent's representation was
compensated.
Therefore, the Respondent's exception numbered "1" is
rejected.
2. The Respondent excepts to the
Hearing Officer's Conclusion of Law numbered "C.2.a." by arguing that
the Hearing Officer fails to identify the special privilege, benefit, or
exemption which was sought by the Respondent.
Such argument is contrary to the language of the cited conclusion which
states: "The benefit that the
Respondent sought during these contacts was the award of a CDBGP contract to
clients of Langton Associates and, more importantly, the removal of the
appearance that Langton Associates had made a mistake in following the
Department's instructions during the 1988 funding cycle." In addition, there are findings of fact
based upon competent, substantial evidence which support the conclusion.
The Respondent also argues that the conclusion of law deals with an
issue (the Respondent's communication style) which was not at issue in this
matter, and, thus, any references to or treatment of the Respondent's
communication style in the Recommended Order is a deviation from the essential
requirements of law. However, the
conclusion is not phrased in terms of a determination as to the Respondent's
communication style, but, rather, is phrased in a manner which addresses the
elements of Section 112.313(8).
Further, threats, communication, or communicative action by the
Respondent can form the evidential basis upon which the findings of fact and
conclusions of law of the Recommended Order are based.
The Respondent's argument citing the Blackburn decision is inapplicable
to the determination of the Hearing Officer that the Respondent violated Section
112.313(8), Florida Statutes, as well as being inapplicable to the
representation sections as stated above.
To begin with, the Blackburn court specifically limited its holding to
the facts of that case. Further, unlike
Blackburn, where the issues involved general political concern over a garbage
collection ordinance and its affect on the office-holding fortunes of a public
officer, the instant matter involved the Respondent's use of his public
position as a State Legislator in attempts to have public employees of an
executive branch department take actions which would have the effect of
specifically advancing the monetary and business interests of the Respondent's
company and the clients which it served.
Such interests do not equate with the incidental campaign benefits to
the county commissioner in Blackburn.
In addition, Blackburn's language and discussion regarding lack of
notice of proscribed conduct is inapplicable to the Respondent because his
requesting and receiving a formal ethics opinion from the Commission regarding
representation before State agencies (CEO 85-83) shows that he was aware that
he might be crossing ethical boundaries.
Therefore, the Respondent's exception numbered "2" is
rejected.
3. The Respondent takes
exception to all of Section D (the portion of the Recommended Order which
discusses the issue of penalties against the Respondent) of the Recommended
Order, arguing that since the Commission has no authority to seek punishment of
a member of the Legislature, penalty comments in the Recommended Order should
be rejected by the Commission.
To the extent that the issues here involve Article II, Section 8(e),
Florida Constitution, the Commission has the authority under Article II,
Section 8(f), Florida Constitution, to investigate and render a public report
that includes conclusions of law regarding whether a violation has been
committed. That public report is not
binding on the Legislature; nor does it commence official action for discipline
or seek to punish a member of the Legislature.
Florida Commission on Ethics v. Plante, 389 So.2d 332, at p. 337 (Fla.
1979). Therefore, the Commission does
not have the authority under the Constitution to recommend a penalty for a
violation of the Constitutional prohibition here.
Violations of the Code of Ethics are penalized in accordance with the
procedures specified in Section 112.324, Florida Statutes. Section 112.324(3) provides that when the
Commission finds that a member of the Legislature has committed a violation,
the Commission shall forward its findings to the President or Speaker, as
appropriate, for referral to committee for investigation and action. That subsection specifically states: "Upon request of the committee, the
commission shall submit a recommendation as to what penalty, if any, should be
imposed." Therefore, the
Commission is not empowered to recommend a penalty for any statutory violation
at this stage of its proceedings.
Accordingly, as any penalty discussion is at least premature, the Respondent's
exception or objection numbered "3" is accepted.
4. The Respondent takes
exception to the Recommended Order, arguing "that it fails to adequately
address the significant issue of cases of this nature being based upon
circumstantial evidence and the associated necessity of determining that all
reasonable hypotheses contrary to the Findings of Fact and Conclusions of Law
must be dispelled," and arguing further that, "[t]here is no
competent substantial evidence which directly demonstrates Mr. Langton actually
said he was making contact with DCA personnel on behalf of his firm or its
clients or that he specifically requested any action be taken as to those entities."
There is no requirement that it be proven that a Respondent actually
made a conclusory statement admitting that he engaged in activity which could
form the evidential basis of certain elements of ethics offenses. Elements of offenses can be proven by the
totality of the evidence as weighed and interpreted by the Hearing
Officer. All of the findings of fact
contained in the Recommended Order which deal with elements of the offenses are
based upon competent, substantial evidence.
In addition, there is no requirement that the Recommended Order engage
in an exhaustive discussion of circumstantial evidence.
Therefore, the Respondent's exception numbered "4" is
rejected.
5. The Respondent takes
exception to the Recommended Order "for its failure to adequately address
the crucial issue of the standard of proof that must be met in proceedings
before the Commission on Ethics."
Since the Hearing Officer determined that the evidence met both the
"preponderance of the evidence" standard and the "clear and
convincing evidence" standard, it is not necessary for the Commission to
determine which standard applies.
Further, since the Commission's action in this matter can constitute
only a public report and not the imposition of an actual penalty or punitive
sanction, and since any disciplinary action by the Legislature against the
Respondent following such a public report would not consist of the Respondent's
loss of a professional license, the preponderance of the evidence standard,
which has been used in all previous matters before the Commission, is the
proper standard of proof.
Therefore, the Respondent's exception numbered "5" is
rejected.
6. The Respondent apparently
takes exception to the Hearing Officer's not considering and not basing
findings of fact on Advocate's Exhibit 18B (the sworn statement of Wanda Jones
given to an assistant state attorney), after it was admitted into evidence by
stipulation of the parties, due to the exhibit being hearsay not within any
exception to the hearsay rule.
While hearsay evidence is admissible in proceedings under Chapter 120,
Florida Statutes, findings of fact cannot be supported by hearsay alone. See Section 120.58(1)(a), Florida
Statutes. Further, in his Recommended
Order, the Hearing Officer does not state that he did not consider the exhibit;
his order provides only that "Advocate's exhibits 18A and 18B are hearsay
not subject to any exception to the hearsay rule. No findings of fact have been based upon these exhibits."
Therefore, Respondent's
exception numbered "8" is rejected.
7. The Respondent takes
exception to the Hearing Officer's reference to a telephone call between the
Respondent and Mr. Parmer, pointing out that the reference appears to be an
inadvertent error wherein the Hearing Officer intended to refer to the
telephone call from the Respondent to Mr. Yeatman.
Since the Advocate for the Commission agrees with the Respondent's
representation of this misstatement by the Hearing Officer, the matter does not
appear to be in controversy. Therefore,
this exception is granted and the references to the "Parmer call" on
pages 46, 47, and 49 of the Recommended Order are hereby corrected to refer to
the telephone call between the Respondent and Mr. Yeatman.
8. The Respondent takes
exception to all findings of fact and conclusions of law which hold that the
purpose of the Respondent's contacts with the DCA was the furtherance of his
business interests, arguing that the conclusions and findings are based upon
Advocate's Exhibit Number 4 which, the Respondent argues further, was admitted
into evidence by the Hearing Officer over his objection that the exhibit
contained opinions and conclusions which infringed upon the province of the
Hearing Officer.
This exception is rejected
because the findings of fact to which the Respondent takes exception are all
based upon competent, substantial evidence.
9. Since the Respondent did not
separate or particularly identify his exceptions as being directed to findings
of fact, versus conclusions of law, it has been difficult to apply the
standards of review provided in Chapter 120, Florida Statutes, to the
Respondent's exceptions. Recognizing
that the Recommended Order also may contain findings of fact that are
designated under conclusions of law, however, it is the Commission's
determination that, except as otherwise expressly stated in this Final Order
and Public Report, there is competent, substantial evidence for the Hearing
Officer's findings of fact and that the Hearing Officer's conclusions of law
reflect a proper understanding and application of the Constitutional and
statutory provisions involved.
Findings of Fact
The Findings of Fact set forth in the Recommended Order are approved,
adopted, and incorporated herein by reference.
Conclusions of Law
1. The Conclusions of Law set
forth in the Recommended Order are approved, adopted, and incorporated herein
by reference except as modified above.
2. Accordingly, the Commission
on Ethics finds that the Respondent, Michael E. Langton, as a State
Representative, violated Section 8(e), Article II, Constitution of the State of
Florida, and Sections 112.3141(1)(c) and 112.313(6), Florida Statutes, as
described herein.
ORDERED by the State of Florida Commission on Ethics meeting in public
session on Friday, January 24, 1992.
January 28, 1992
Date
_______________________________
Dean Bunch
Chairman
COPIES FURNISHED:
Mr. Mark Herron and Mr. Jeffrey H.
Barker,
Attorneys for Respondent
Ms. Virlindia Doss, Commission
Advocate
Mr. Paul D. Harvill, Complainant
Division of Administrative Hearings
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