BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

 

                                )

In re JOANNE FANIZZA,           )

                                )

          Respondent.           )  Complaint Nos. 02-001,

                                )    02-014, & 02-020

________________________________)  Final Order No. 05-086

 

 

FINAL ORDER AND PUBLIC REPORT

 

This matter came before the State of Florida Commission on Ethics (Commission) for final agency action[1] pursuant to Sections 112.322, 120.569, and 120.57(2), Florida Statutes, and pursuant to agreement of Ms. Joanne Fanizza (Respondent) and Mr. James H. Peterson, III (Advocate).[2]  Therefore, we must determine whether Respondent, as a member of the City Council of the City of Wilton Manors, Florida, violated Section 112.313(7)(a), Florida Statutes, by representing persons/parties in a lawsuit against the City [17^th Judicial Circuit, Broward County, Florida, Case No. 96-3525(12), Florida Fourth District Court of Appeal Case No. 97-1796,][3] while serving on the City Council; whether Respondent violated Section 112.313(7)(a), Florida Statutes, by representing persons/parties in another lawsuit against the City [17^th Judicial Circuit, Broward County, Florida Case No. 01-5701(14)][4] while serving on the City Council; and, if so, what penalties, if any, should we recommend that the Governor impose upon Respondent.[5]  

 

FINDINGS OF FACT

1.            Respondent served as a member of the City Council of the City of Wilton Manors, Florida, from March 1998 until March 2002.  (Stip. 2, 32; ROI 3)[6]

2.            Currently, and during the time she was a City Council member, Respondent is and was an attorney, having been admitted to The Florida Bar in 1988.  (Stip. 1)

The Glasser Case

3.            As a private attorney representing Ms. Glasser and eight other neighbors/residents/clients, Respondent, prior to her becoming a City Council member, appeared at a City Council quasi-judicial hearing on a rezoning request of the “McJunkin property,” in opposition to the request, but the City Council nevertheless approved the rezoning.  (Stip. 4)

4.             In her aforementioned capacity as a private attorney, Respondent, prior to her City Council service, filed in circuit court a petition for writ of certiorari on behalf of her clients in the Glasser case (a case to which Respondent was never a party) seeking to overturn the City Council’s action in the rezoning/land use matter; the City filed a response, acknowledging the existence of procedural deficiencies and agreeing to reverse the rezoning; and the circuit court, sitting in appellate capacity, reversed the rezoning decision of the City Council.  (Stip. 6, 7)

5.            Respondent, prior to her Council service and continuing in her private capacity for her private clients, filed a motion to tax attorney fees and costs in the Glasser case; the court granted the motion, awarding Respondent’s clients $18,000.00 in attorney fees and $1,944.18 in costs expended in pursuing the litigation against the City, said award being memorialized in a final judgment entered April 23, 1997; and the City appealed the award to the Fourth District Court of Appeal.  (Stip. 8, 9)

6.            After Respondent took her seat on the City Council, the District Court of Appeal affirmed the circuit court’s fees/costs award for Respondent’s private clients and against the City; entered an order granting the winners’ (Respondent’s private clients’) motion to tax attorney fees;  and denied Respondent’s private client’s costs, without prejudice to seek costs in the circuit court.  (Stip. 10)

7.            Thereafter, and during her tenure on the City Council, Respondent filed, in behalf of her private clients and against the City, a motion to tax appellate costs and attorney fees and to compel the City to pay fees incurred below with interest, and sent a cover letter and a copy of the motion to the City’s attorney.  (Stip. 11, 12)

8.            Thereafter, the City’s attorney sent a memorandum to the Mayor and City Council members detailing events in the Glasser case and explaining that the City had lost the appeal, sent another memorandum, referencing and attaching a copy of Respondent’s letter sent to the City’s attorney on behalf of Respondent’s private clients, to the Mayor and Council for their review and consideration.  (Stip. 13, 14)

9.            Thereafter, the District Court of Appeal issued its mandate on the appeal, and the City’s Attorney forwarded a memorandum to the Mayor and City Council members, with an attached copy of the mandate, for their review.  (Stip. 15, 16)

10.        Thereafter, the City Council considered a measure to authorize an  expenditure of City funds to pay the award of attorney fees to Respondent’s private clients in the Glasser case; Respondent walked off the dais and out of the Council room during the entire discussion and vote, abstained from voting, and timely filed CE Form 8B, Memorandum of Voting Conflict for County, Municipal and Other Local Public Officers, regarding the measure; no one appeared for Respondent’s private clients during the Council’s consideration of and vote on the measure; and the measure was approved.  (Stip. 17; Exhibit 7 to Stip.)

11.        Thereafter, an agreed order on the pending motion to tax appellate costs and attorney fees was entered by the circuit court in the Glasser case and the City’s attorney sent a memorandum to the Mayor and City Council members referencing and attaching the agreed order.  (Stip. 18, 19)

12.        At the time of all of the occurrences set forth in paragraphs 6 through 11 above of this Final Order and Public Report, Respondent served both as an attorney representing private clients (in the Glasser case) with matters pending in court and out of court against the City, and as a member of the City Council, a governing body with interests adverse to those of Respondent’s private clients and a governing body called upon to evaluate, review, or decide upon controversies between itself and Respondent’s private clients.  (Stip. 1, 2, 10-19)

The Fanizza Case

13.        During Respondent’s service on the City Council, the Council considered another zoning/land use matter (Fanizza case), approving a request for a special exception to permit townhouses in a single-family zoning district by a 4-1 vote, with Respondent voting against approval.  (Stip. 20) 

14.        After the vote, Respondent undertook legal representation of several private property owners purportedly affected by approval of the special exception, and sought to overturn the approval by seeking review in the circuit court on their behalf, also naming herself as a petitioner in the action (“as City Council member who dissented from the City Council’s action and as a property owner living in the same zoning district”).  In addition to seeking to overturn the approval, the circuit court petition filed by Respondent against the City also sought an award of attorney fees and costs to petitioners from the City, despite there being no evidence that Respondent asked for an attorney fee from any of the private property owners (who nevertheless contributed money toward the costs of bringing the matter before the circuit court).  (Stip. 21, 22, 23)

15.        Thereafter, Respondent and her private clients won (and the City lost) a motion to dismiss the circuit court action; Respondent attempted to settle the matter via a letter to the City’s attorney requesting that the City agree that its approval of the special exception was “incorrectly made” and that its special exception ordinance is unconstitutional; and, in an executive session not attended by Respondent, the City Council considered the settlement offer and refused it.  (Stip. 24, 25)

16.        Thereafter, the circuit court entered a final order in the case, finding in favor of Respondent’s private clients and against the City, also finding that Respondent did not have standing to be a party to (as opposed to an attorney on) the matter because she did not live close enough to the property granted the special exception by the City Council, and denying petitioners’ request for attorney fees.  There was no appeal of the circuit court’s final order.  (Stip. 26, 27)

17.        After entry of the circuit court’s final order, Respondent filed on behalf of her private clients (prevailing parties in the circuit court) a motion in the circuit court to tax costs against the City; Respondent and the City’s counsel resolved the motion, with Respondent’s clients receiving $500.00 from the City via check issued without the need for City Council approval; and Respondent did not receive attorney fees for the work she performed for her clients in the matter, although she actively sought attorney fees and costs.  (Stip. 23, 26, 28, 29, 30)

18.        In the matter (Fanizza case), Respondent never appeared directly before the City Council on behalf of her private clients.  However, Respondent participated in her official capacity as a City Council member in her public agency’s consideration of and vote on the special exception, undertook legal representation of private parties adverse to the decision and position of her public agency on the matter, participated directly and predominantly in  litigation in behalf of private parties against her public agency, and significantly interacted, in the capacity of a private advocate, with representatives of her public agency regarding items of controversy between her public agency and her private clients for which the public governing body of which she was a member had an active role in determining the City’s position, including the items or events set forth in paragraphs 14 through 17 above in this Final Order and Public Report.  (Stip. 20-31)

CONCLUSIONS OF LAW

19.        The Commission on Ethics has jurisdiction over the parties to and the subject matter of this proceeding.  Sections 112.322, 120.569, and 120.57, Florida Statutes.

20.        The Commission is authorized to conduct investigations and hearings and to make public reports on complaints concerning violations of Part III, Chapter 112, Florida Statutes (the Code of Ethics for Public Officers and Employees), including making determinations as to whether or not the law has been violated and recommending appropriate penalties.  Sections 112.322, 112.317, and 112.324, Florida Statutes.

21.        In this proceeding, it is the Commission, through the Advocate, that has the burden of proof (via clear and convincing evidence) as to whether Respondent violated Section 112.313(7)(a), Florida Statutes.  Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1^st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1^st DCA 1977); In Re Davey, 645 So. 2d 398 (Fla. 1994).

22.        Section 112.313(7)(a), Florida Statutes, underlined for emphasis as to the portion of the statute at issue, provides:

No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee . . .; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties.

 

 

23.        In order to establish a violation of the emphasized portion of the statute, the following elements must be proved:

 

1)  The Respondent must have been a public officer or employee.

 

 

2)  The Respondent must have held employment or a contractual relationship that created a continuing or frequently recurring conflict between the Respondent’s private interests and the performance of the Respondent’s public duties or that impeded the full and faithful discharge of the Respondent’s public duties.

 

 

24.        “Conflict” or “conflict of interest,” for purposes of the Code of Ethics for Public Offices and Employees, is defined by Section 112.312(8), Florida Statutes, to “[mean] a situation in which regard for a private interest tends to lead to disregard of a public duty or interest.”

25.        Section 112.313(7)(a) and the definition of “conflict of interest” codified at Section 112.312(8) are rooted in the age-old notion of conflict.  See Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4^th DCA 1982), in which the court, quoting from an earlier Florida Supreme Court case, stated:

No principle of law is better settled than that the same person cannot act for himself and at the same time with respect to the same matter as the agent of another whose interests are conflicting.  The two positions impose different obligations, and their union would at once raise a conflict between interest and duty and, constituted as humanity is, in the majority of cases duty would be overborne in the struggle.

 

 

26.        The Commission on Ethics is afforded wide discretion in the interpretation of the statute; the Commission’s interpretation will not be overturned on appeal unless it is clearly erroneous; and a reviewing court must defer to any interpretation of the statute by the Commission which is possible and reasonable.  Velez v. Commission on Ethics, 739 So. 2d 686 (Fla. 5^th DCA 1999).

27.        Compliance with the voting conflicts law, Section 112.3143, Florida Statutes, does not obviate a conflict under Section 112.313(7)(a), Florida Statutes.  CEO 94-5, CEO 96-23.

28.        The factual findings herein and their evidential underpinnings support the first element:  that Respondent was a public officer subject to Section 112.313(7)(a)  by virtue of being a member of the City Council of the City of Wilton Manors from March 1998 until March 2002.  Thus, we conclude that the first element has been proven, by clear and convincing evidence, as to the allegation of a violation of the statute regarding the Glasser case and as to the allegation of a violation of the statue regarding the Fanizza case.

29.        Regarding the Glasser case and the Fanizza case, we find, based on clear and convincing evidence, that Respondent held a contractual relationship with her clients (private litigants suing the City and adverse to the position of Respondent’s public agency), notwithstanding that she did not receive monetary remuneration for her services in the Fanizza case.[7]  While we have in a number of instances found that a public official did not hold a contractual relationship in situations in which he or she was not paid or otherwise compensated,[8] it our view of the statute, long held and often stated, that a public official holds a contractual relationship with all clients of his or her law firm or practice, recognizing, as do courts, the special and professional connections between attorneys and their clients. See CEO 80-79, CEO 81-66, CEO 86-37, CEO 92-11, CEO 94-5, CEO 96-1, CEO 03-7, and CEO 04-9.[9]  Also, see CEO 82-50 (school board member real estate broker listing property for sale by school board without receiving a commission), CEO 94-37 (insurance clients of city councilman), and CEO 95-28 (county property appraiser licensed as certified appraiser signing private real estate appraisals prepared by registered appraiser) for examples of decisions of ours finding contractual relationships to exist under the statute in situations involving private client connections of public officials who occupied a private profession other than that of an attorney.  In these situations, as well as those involving attorneys, the fact that the person had professionally-licensed obligations toward his or her clients established the existence of a contractual relationship, not the fact of monetary compensation.  Additionally, we note that it is the view of the Supreme Court of Florida that payment of a fee to an attorney is not necessary to the formation of an attorney-client relationship.  See The Florida Bar v. King, 664 So. 2d 925 (Fla. 1995), in which the Court stated:

 

We need not resolve any factual disputes over when King and Baldwin met and whether Baldwin paid a cash retainer.  The record shows that King took action on behalf of Baldwin and his company and King identified them as his clients.

 

King, at 927.

30.        Further, we find, based on clear and convincing evidence, that Respondent’s contractual relationships with her private clients in the Glasser and Fanizza cases created a continuing or frequently recurring conflict between her private interests as an attorney representing private litigants adverse to her public agency and its governmental decisions and the performance of her public duties as member of the governing body of her public agency, and that the contractual relationship impeded the full and faithful discharge of her public duties.  Not only was the City deprived of the services of one of its governing board members (“wearing her public/Council hat”) by virtue of her private entanglements occasioned by her representation of parties against her City, but she (“wearing her private lawyer hat”) and her private clients had the benefit of her intimate knowledge of many of the workings of her public agency regarding the very matter in which she was acting as a private partisan.  Plainly, it is difficult for us to conceive of a situation more fraught with the inability of a public official to serve two masters, as discussed in Zerweck, supra, than the instant matter before us involving Respondent.  Further, by way of comparison, in Velez, supra, the District Court of Appeal upheld our finding (in CEO 98-20) that the private certified water operator endeavor of a public health department employee created a continuing or frequently recurring conflict under the statute because it placed the employee “in competition with” the health department’s public water sampling services, despite the fact that the employee had no responsibility in her public capacity regarding the water systems from which she collected water samples in her private capacity.  In the instant matter, Respondent personally had affirmative public capacity responsibility regarding the Glasser case but personally failed to discharge any public capacity effort or responsibility regarding the Glasser case, personally had affirmative public capacity responsibility regarding the Fanizza case (having voted on and participated in the City Council’s consideration of the special exception), and personally failed to discharge any public capacity effort or responsibility regarding the Fanizza case thereafter, her ability to objectively participate in her City (public servant) capacity having been hobbled by her obligations to her private clients adverse to the City.  Also, see CEO 80-26 (city attorney retaining interest in litigation against city, city attorney member of law firm representing client in suit against city), CEO 82-7 (city mayor’s law firm representing clients with claims against city), CEO 89-39 (member of county consumer protection board representing individuals cited by the board in circuit court in related matters), as examples of previous decisions of ours where we have found a public official’s private legal representation of persons with interests adverse to those of his public agency to create a conflict under the statute.[10]    

31.        Accordingly, we conclude that Respondent, Joanne Fanizza, as a member of the City Council of the City of Wilton Manors, Florida, (1)violated Section 112.313(7)(a), Florida Statutes, by representing persons/parties in a lawsuit against the City [17^th Judicial Circuit, Broward County, Florida, Case No. 96-3525(12), Florida Fourth District Court of Appeal Case No. 97-1796], the Glasser case, while serving as a member of the City Council, and (2)violated Section 112.313(7)(a), Florida Statutes, by representing persons/parties in another lawsuit against the City [17^th Judicial Circuit, Broward County, Florida, Case No. 01-5701(14), the Fanizza case, while serving as a member of the City Council.

RECOMMENDED PENALTY

     We adopt the recommendation of the Advocate and, pursuant to Sections 112.317 and 112.324, Florida Statutes, recommend that the Governor impose a civil penalty in the amount of $1,000 upon Respondent, Joanne Fanizza, a former member of the City Council of Wilton Manors, Florida, for her conflict in the Glasser case, recommend that the Governor impose a civil penalty in the amount of $2,000 upon her for her conflict in the Fanizza case (for a total civil penalty in the amount of $3,000), and recommend that the Governor publicly censure and reprimand her for her conflict in both the Glasser case and the Fanizza case. 

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on January 27, 2005.

 

                                   ________________________

                                   Date Rendered

 

 

                                   ________________________

                                   John A. Grant, Jr.

                                   Acting Chair

 

THIS ORDER CONSTITUTES FINAL AGENCY ACTION.  ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709 (PHYSICAL ADDRESS AT 3600 MACLAY BLVD., SOUTH, SUITE 201, TALLAHASSEE, FLORIDA); AND BY FILING A COPY OF THE NOTICE OF APPEAL ATTACHED TO WHICH IS A CONFORMED COPY OF THE ORDER DEISGNATED IN THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL.  THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.

 

cc:  Ms. Joanne Fanizza, Respondent

     Ms. Madonna Finney Hawken, Attorney for Respondent

     Mr. James H. Peterson, III, Commission Advocate

     Ms. Audrey Arbuckle, Complainant

     Mr. Greg Sharp, Complainant

     Mr. Adam Straub, Complainant