IN RE: DAVID MCLEAN,          Respondent.	) ) ) )		Case No. 14-1114EC

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted the final hearing on July 10, 2014, by video teleconference in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

STATEMENT OF THE ISSUES

The issues are whether the Florida Commission on Ethics (Ethics Commission) has jurisdiction over Counts I and IV of the Advocate's Amended Recommendation, pursuant to section 122.322(1), Florida Statutes; if jurisdiction exists over Count IV, whether Respondent, while a commissioner and vice mayor of the City of Margate (City), violated section 112.313(7), Florida Statutes, by appearing before the City commission on behalf of his employer, which was seeking a beer and wine license for consumption on the premises (2COP); and whether Respondent is entitled to an award of attorneys' fees and costs, pursuant to section 57.105(5), Florida Statutes.

PRELIMINARY STATEMENT

On May 3 and 31, 2012, Michael Casey (Complainant) filed with the Ethics Commission a Complaint and Amended Complaint, which are detailed below.

By Determination of Investigative Jurisdiction and Order to Investigate filed on June 18, 2012, the Executive Director of the Ethics Commission determined that the Ethics Commission had jurisdiction to investigate charges that Respondent misused a City credit card, improperly voted against a City commission motion to censure him for misuse of a City credit card, and improperly appeared before the City commission to support the commission's approval of his employer's application for an alcoholic beverage license. However, the Executive Director determined that the Ethics Commission lacked jurisdiction to investigate a charge that Respondent failed to repay a $15,000 loan from Complainant.

An undated and unsigned Report of Investigation provides additional details for each of the three alleged violations for which the Executive Director of the Ethics Commission determined that the Ethics Commission had investigative jurisdiction. For the improper appearance before the City commission, the report notes that Respondent explained that the City was divided into five districts and allowed only a certain number of alcoholic beverage establishments in each district. Respondent also explained, according to the report, that the City commission was on summer break when his employer, known as the Tiki Bar or Dave's Tiki Bar, sought a license to operate as a bar, and the City commission often conducted special meetings to allow businesses to open during periods without regular meetings.

The report adds that the minutes and audio recording of the special meeting of the City commission on August 15, 2011, confirm that Respondent advised the City commission that he worked for the bar, which was then closed, but that he had no ownership interest; and the City commissioners asked no questions of Respondent before they unanimously voted to approve the license. Reportedly, the minutes further reflect that Respondent abstained from voting and filed, on the same day as the meeting, a Memorandum of Voting Conflict (Form 8B). The report adds that, on August 24, 2011, Respondent became the principal of the corporation owning and operating the bar.

The report concludes that the City clerk confirmed that any resident may ask for a special meeting of the City commission, and the mayor routinely grants such requests to allow businesses to open during periods that the City commission has no regular meetings scheduled.

By Advocate's Recommendation dated December 2012 (the exact date is illegible), the Advocate recommended that the Ethics Commission find probable cause to determine that Respondent misused a City credit card in violation of section 112.313(6) (Count I), probable cause to determine that Respondent improperly voted on a motion to censure him in violation of section 112.3143 (Count II), no probable cause to determine that Respondent improperly voted on measures involving the use of City credit cards in violation of section 112.3143 (Count III), and no probable cause to determine that Respondent improperly represented his employer before a special meeting of the City commission on August 15, 2011, addressing the Tiki Bar's license application in violation of section 112.313(7)(a) (Count IV).

As for Count IV, the Advocate explained that Respondent disclosed at the special meeting that he worked for the bar, properly abstained from voting on the request for approval of a license for the bar, and properly filed the voting conflict form. The Advocate acknowledged that Respondent subsequently purchased the bar.

The Advocate analyzed the first and second clauses of section 112.313(7)(a), which are identified in the Conclusions of Law. As noted below, each clause may independently support the finding of a violation.

For the first clause, the Advocate considered whether the bar was subject to the regulation of the City commission. Here, the Advocate noted that the state of Florida regulates alcoholic beverage licenses, and the City only applies a zoning regulation that may be characterized as "incidental or passive," as discussed in Commission on Ethics Opinion (CEO) 11-06,¹which is discussed in the Conclusions of Law.

For the second clause, the Advocate considered whether Respondent's employment will create a continuing or frequently recurring conflict between his private interests and public duties or impede the full and faithful discharge of his public duties. In determining that Respondent's employment will not create a continuing or frequent conflict or impede the performance of his duty, the Advocate emphasized the limited role of the City commission in making a zoning-type determination on the bar's license application and the absence of evidence of any ongoing regulatory activities by the City, if the bar obtained and operated under an alcoholic beverage license.

On January 7, 2013, the Advocate issued an Advocate's Amended Recommendation, which recommended that the Ethics Commission find probable cause as to Count IV. The Amended Recommendation does not change the facts, nor does it change the analysis of the first clause of section 112.313(7)(a). The Amended Recommendation concludes, though, that the facts constitute a violation of the second clause of section 112.313(7)(a).

The Advocate explained that, in CEO 11-06, the Ethics Commission had determined that a public officer's representation of "clients" before his public board poses a "substantial conflict" (i.e., a "continuing or frequently recurring conflict") or impedes the performance of his public duty. The Advocate reasoned:

Since Respondent is employed by Dave's Tiki Bar, and Respondent represented Dave's Tiki Bar before the City Commission he is in violation of the second [clause] of the statute. In other words, Respondent would have had an interest in whether his employer could use the liquor license; consequently, he had employment that created a continuing or frequently recurring conflict between Respondent's private interests and his public duties, or impeded the full and faithful discharge of his duties as a City Commissioner.

By Order Finding Probable Cause filed on January 13, 2013, the Executive Director of the Ethics Commission found probable cause for Counts I, II, and IV, but not for Count III. On March 14, 2014,² the Ethics Commission transmitted to DOAH the file, which consisted of the allegations contained in Counts I, II, and IV.

The parties called no witnesses and offered no exhibits at the hearing, during which the Administrative Law Judge issued preliminary evidentiary rulings, and the Advocate and Respondent conducted off-the-record negotiations. The negotiations produced a partial settlement and eliminated the necessity of an evidentiary hearing.

The Advocate and Respondent agreed that, if the Ethics Commission has jurisdiction over Count I, Respondent admits the violation alleged in Count I, and the Ethics Commission will impose an administrative fine of $3000, censure, and a public reprimand for this violation.

The Advocate and Respondent agreed to the dismissal of Count II. As noted above, Count III was dropped before the Ethics Commission transmitted the file to DOAH.

The Advocate and Respondent agreed that, if the Ethics Commission has jurisdiction over Count IV, the Administrative Law Judge will apply a factual stipulation to be filed by the parties to determine whether Respondent committed the violation alleged in Count IV. The Advocate and Respondent further agreed that, if the Advocate prevails on Count IV, the Ethics Commission will impose no additional penalty in addition to the above-described penalties imposed for the violation stated in Count I. In other words, if Respondent is guilty of Count I, Count IV, or Counts I and IV, the penalty is $3000, censure, and a reprimand.

The parties filed a joint factual stipulation on July 18, 2014. The joint factual stipulation is brief.³ The Findings of Fact are drawn from the stipulation, except for findings concerning the Complaint and Amended Complaint, including attachments. Post-hearing, on his own initiative, the Administrative Law Judge has admitted the Complaint and Amended Complaint, not for the truth of the matters contained in these documents, but solely for the purpose of establishing the contents of these documents to resolve the jurisdictional issues.⁴

Neither party ordered a transcript of the final hearing. As agreed by the parties, the Advocate filed a proposed recommended order on July 25, 2014; Respondent filed a proposed recommended order on July 31, 2014; and the Advocate filed a proposed supplemental recommended order on August 8, 2014.

FINDINGS OF FACT

1. The Complaint is on a Ethics Commission form (Form 50) that asks the complainant for a full explanation of the complaint. The complaint form refers twice to documents. The complaint form asks the complainant not to attach copies of lengthy documents; the form assures that, "if they are relevant, your description of them will suffice." The oath printed on the complaint form states: "I . . . do depose on oath or affirmation . . . that the facts set forth in the foregoing complaint and attachments thereto are true and correct to the best of my knowledge and belief."

2. The Complaint, which is signed and notarized, contains no explanation or narrative, but Complainant attached 11 pages of copies of documents, which are marked as pages 3 through 13.

3. Page three of the Complaint is an article dated March 8, 2012, and posted on MargateNews.net.⁵ This article reports that, by a 3-2 vote, the City commission reprimanded Respondent for abusing City credit card privileges, even though Respondent claimed to have repaid any unauthorized charges. The article reports that one commissioner expressed a belief that Respondent misused a City credit card and committed a "few other abuses."

4. At page four of the Complaint is a copy of the City credit card agreement signed by Respondent. Handwritten notations add: "This (i.e., the credit card agreement) states that he (Respondent) cannot use card for personal use in which he did[.] [H]e bought beer and wine for his bar with cash advance. Says he paid it back in cash be has no repcit (sic) for it." All handwritten notes on documents attached to the Complaint and Amended Complaint were made by Complainant.⁶

5. At page five, a MargateNews.net article dated August 16, 2010, reports alleged tax and purchasing violations by McLean's Bar & Grill, which was located at 2160 Mears Parkway. This article mentions other matters, including Respondent's voting a pay raise for City commissioners and a property-tax hike, Respondent's "history of financial instability . . . and fiduciary irresponsibility," and Respondent's two residential evictions from 1996-2006 for lease defaults.

6. At page six is an unsigned, typewritten letter about Respondent. This letter twice charges that Respondent misused a City credit card and also alleges that he failed to repay $15,000 from "a Margate taxpayer"--Complainant--and violated unspecified tax and purchasing laws as to alcoholic beverages. A handwritten note adds: "I read this at the commissioner meeting." Below this note is printed Complainant's name.

7. At pages seven and eight, a MargateNews.net article dated October 30, 2011, states that Complainant had lent Respondent $15,000 for a kitchen addition at McLean's Bar & Grill, but Respondent had failed to repay the loan after the business closed. This article alludes to some bad debts and judgments against Respondent or his businesses, but portions of the article are illegible, and the meaning of these portions of the article is unclear.

8. The same article reports that Respondent was now operating Dave's Tiki Bar, which was located at 238 North State Road 7. Part of this portion of the article is also illegible, but seems to report that Jean LeBlanc, a co-owner with Respondent of a "former Tiki Bar," cancelled the bar's 2COP beer and wine license, effectively closing the bar. To reopen the Tiki Bar, according to the article, Respondent convinced his fellow City commissioners to hold a special meeting of the City commission in August 2011 to grant a 2COP license to "Tiki bar petitioner, Kenneth Suhandron," whom the article describes as Respondent's "partner." The article notes that Respondent abstained from voting due to a conflict of interest. The article states that Respondent acquired the corporate owner of the bar days after the special meeting, so Respondent now holds the temporary 2COP license, even though he had not paid for it. An online update indicates that Respondent paid for the 2COP license on November 1, 2011.

9. At page nine, a MargateNews.net article dated August 20, 2011, describes a special meeting of the City commission on August 15. This article states that Respondent had been managing the Tiki Bar when a disagreement between him and his partner, Mr. LeBlanc, resulted in the cancellation of the bar's 2COP beer and wine license. According to the article, Respondent found a new investor, Mr. Suhandron, to apply for a new 2COP license and called for a special meeting of the City commission to provide the necessary City approval for the applicant to obtain a 2COP license. The article notes that Respondent appeared at the meeting to represent the listed applicant, Mr. Suhandron, but abstained from voting due to a conflict of interest.

10. At pages 10 through 12 are a final summary judgment against Respondent and McLean's Bar & Grill, Inc., for $29,638.60 and a final judgment against Respondent for $20,073.63. At page 13 is an email from Complainant that pertains to the charge of Respondent's misuse of a City credit card. Redacted from the email is reportedly an email that another City commissioner had sent to Complainant, who added a handwritten note to this effect.

11. The Amended Complaint is on the same form as the Complaint and is also notarized.⁷ Like the Complaint, the Amended Complaint contains no explanation or narration of the charges, but it contains 41 pages of copies of documents, which are attached as pages A-3 through A-43.

12. At pages A-3 through A-4, a letter dated May 16, 2012, from the Ethics Commission to Complainant focuses on Respondent's alleged failure to repay the $15,000 loan from Complainant and Respondent's misuse of a City credit card. To this letter, Complainant added a handwritten note stating:

I cannot prove he use[d] [a City credit card for cash advances] for alcohol. . . for bar but just the cash advance alone is breaking the law over [sentence abruptly ends]. Just last week he got fined again for selling illigiel [sic] beer that he bought from a gas station in his bar[.] It will be in margate news.net next week[. I]f you want I can email you a copy. This man is a con artist.

13. Pages A-5 through A-8 comprise a promissory note evidencing the $15,000 loan from Complainant. Complainant handwrote on the note: "He never gave me 1 payment or any interest payments."

14. Pages A-9 through A-14 are the minutes of a meeting of the City commission on March 7, 2012. The sole handwritten addition to these minutes is at the top of the first page: "Each one of the following [commissioners?] has info on it[. A]ll are highlighted or outlined for your use."

15. According to the minutes, one commissioner stated that she believed that Respondent had misused a City credit card and wanted him to resign, but he refused to respond to her statement or, clearly, to resign. This commissioner asked the City attorney to identify the options available to the City commission. The City attorney informed the commission that there had not been a determination that Respondent had violated the standards of conduct or code of ethics in his use of a City credit card and advised that the City commission could order an investigation, prospectively clarify the restrictions on the use of City credit cards and provide for forfeiture of office for a violation of these restrictions, publicly censure or reprimand a City commissioner, or prohibit a City commissioner from using a City credit card.

16. According to the minutes, another commissioner--the mayor--then stated that what Respondent had done was wrong. The commissioner who had called for Respondent's resignation then asked for an investigation to be conducted by the county Board of Ethics or the Ethics Commission. The mayor responded that either this commissioner or a resident would need to file such a request because the City commission was not in a position to do so itself.

17. A motion to censure Respondent, revoke his City credit card, and order an investigation then failed for the lack of a second. A motion followed to censure Respondent and revoke his City credit card. This motion was amended to add a directive to the City attorney to add restrictions to the use of City credit cards and provide for forfeiture of office for their violation. Prior to a vote on this amended motion, someone made a motion to table the amended motion, but the motion to table failed by a 2-3 vote. The commission then considered the amended motion, which passed 3-2. Respondent voted to table the amended motion and against the amended motion.

18. At pages A-15 through A-21, the minutes of a meeting of the City commission on March 21, 2012, state that Respondent asked the City manager to cancel his City credit card "in light of the recent inquiries on his use of the card." (It appears, though, that the adoption of the March 7 amended motion should already have resulted in the cancellation of Respondent's City credit card.) According to the minutes, Respondent then "apologized for the mistrust the matter had caused" and added that "he did not intentionally misuse his position to mistrust anyone." Reverting to more conventional syntax, Respondent concluded: "He could not change what happened, but he had made it right and said it would not happen again." Complainant drew a box around this paragraph of the minutes, and he drew an arrow pointing to a corner of the box.

19. Later in the meeting, the City commission unanimously agreed to advertise an ordinance restricting the use of City credit cards and providing for the dismissal of any employee violating these restrictions. A handwritten note states that Respondent should nonetheless be removed from office for his misuse of a City credit card because "[h]e used card for cash advances and said he paid city back in cash, but no one has a record of him doing that."

20. Pages A-22 through A-37 are the minutes of a meeting of the City commission on April 18, 2012, and four executed memoranda of voting conflict that appear to have been attached to the minutes. These minutes describe City commission votes on alcoholic beverage licenses as to which Respondent abstained from voting due to his employment, but the establishments seeking City commission approvals appear to have been unrelated to Respondent.

21. As indicated in the joint factual stipulation, at all material times, Respondent served as a commissioner and vice mayor of the City commission, and, as such, Respondent was subject to part III, chapter 112, Florida Statutes.

22. As indicated in the joint factual stipulation, Respondent misused a City credit card.

23. As indicated in the joint factual stipulation, while serving as a commissioner and vice mayor of the City, Respondent represented his employer before the City commission in the employer's application for a license from the City commission. Respondent timely disclosed his employment relationship to the City commission, abstained from voting on the issue, and timely filed a Memorandum of Voting Conflict.

24. Under the circumstances, the appearance of Respondent, as an employee of the Tiki Bar, at the August 15, 2011, special meeting of the City commission did not constitute, or serve as a precursor to, a continuing or frequently recurring conflict between Respondent's private interests and public duties, nor did this appearance impede the full and faithful discharge of Respondent's public duties. The key facts are the lack of significant regulatory jurisdiction of the City commission over the issuance and use of 2COP licenses, the one-time nature of the Tiki Bar's need for City commission approval for its request for a 2COP license, the employment relationship that existed between Respondent and the Tiki Bar, and the absence of any responsibilities imposed on Respondent due to his employment with the Tiki Bar to represent other parties in requests before the City commission.

CONCLUSIONS OF LAW

25. The subject matter jurisdiction of DOAH under sections 120.569 and 120.57(1), Florida Statutes, and Florida Administrative Code Rule 34-5.010 is dependent on whether the Ethics Commission has investigatory jurisdiction under section 112.322(1). Section 112.322(1) authorizes the Ethics Commission to investigate "sworn complaints" of ethics violations and breaches of the public trust. Section 112.322(1) extends the Ethics Commission's investigative authority to "all facts and parties materially related to the complaint at issue."⁸

26. Section 112.324(1)(a) authorizes the use of the complaint form that Complainant used in this case. Florida Administrative Code Rule 34-5.002(1) provides that a complaint need not be as precise as would be required by the Florida Rules of Civil Procedure and "shall be deemed sufficient if the complainant under oath upon knowledge or belief alleges matters which, if true, may constitute a breach of public trust." Rule 34-5.002(1) adds that a complaint shall not be insufficient because it is based on hearsay that would not be admissible in court.

27. The sole jurisdictional questions are whether Complainant swore or affirmed to the facts constituting Counts I and IV. These questions arise because Complainant never complied with the form's request for an explanation of his complaints, but instead signed, under oath, two complaint forms, to which Complainant attached a total of 14 documents. One of these documents consists of a typewritten letter by Complainant that, although not addressed to the Ethics Commission, serves as an explanation of the complaints stated in the letter. Several of these documents contain Complainant's handwritten notes, which include various complaints against Respondent.

28. In addressing these jurisdictional issues, the Advocate misses the point in its supplemental proposed recommended order when it argues that Complainant is not required to base his complaint on matters within his personal knowledge, or that the Ethics Commission may consider matters materially related to the complaint at issue. Resolution of the jurisdictional questions in this case does not turn on the quality of Complainant's knowledge of the facts, or whether the facts reported by Complainant are hearsay or are materially related to the subject complaint. The jurisdictional questions are whether Complainant has filed a sworn complaint as to the matters contained in Counts I and IV or to anything else to which the subjects of Counts I and IV are materially related. The jurisdictional statute does not require much, but it requires that a complainant be willing to, and in fact, swear or affirm to the facts underlying her complaint.

29. Complainant clearly explained--and thus swore to--the charges set forth in Count I. Complainant stated that Respondent misused a City credit card in the handwritten notes on the following documents: the City credit card agreement, the Ethics Commission letter dated May 16, 2012, and the minutes of the meeting of the City commission on March 21, 2012. Also, Complainant's typewritten letter at page six of the Complaint twice charges Respondent with misusing a City credit card.

30. Complainant has not so clearly explained--and thus sworn to--the charges set forth in Count IV. No handwritten notation touches on Respondent's appearance at the August 15, 2011, special meeting of the City commission for the Tiki Bar, nor is this matter mentioned in the typewritten letter on page six of the Complaint.

31. Respondent's appearance at the August 15, 2011, special meeting of the City commission is mentioned in only two documents--both online articles in the MargateNews.net. Signing the complaint form verifies that "the facts set forth in the complaint and attachments thereto are true and correct." This means either that the complainant is verifying the facts explained in the complaint and contained in the attachments, or the complainant is verifying the facts explained in the complaint and verifying that the attached documents are true copies of the originals. In other words, the form leaves unanswered the question of whether the language, "the facts set forth in the," modifies "complaint" or "complaint" and "attachments."

32. The Advocate would argue that "complaint" and "attachments" are modified by "the facts set forth in the." But case law does not favor a liberal interpretation of this jurisdictional statute in support of jurisdiction. Compare Kinzel v. City of N. Miami, 212 So. 2d 327 (Fla. 3d DCA 1968) (failure to timely file a verified complaint within statutory timeframe to challenge an election not excused due to the "general proposition that when a statutory action is availed of[,] the provisions for its exercise must be strictly followed").

33. In an older, but more extensive, opinion, Edgerton v. International Co., 89 So. 2d 488 (Fla. 1956), the Florida Hotel and Restaurant Commissioner commenced a proceeding to suspend or revoke a hotel and coffee shop license, and the licensee filed a petition for a writ of prohibition. A statute required the commissioner to commence any suspension and revocation proceeding within 60 days of the alleged offense. No statute defined when a proceeding was commenced, but one statute provided that a proceeding "shall be by" serving a copy of the notice on the licensee, and another statute provided that all notices to be served shall be "delivered personally . . . or by registered letter." The commissioner mailed the notice on the 59th day, and it was delivered on the 61st day.

34. The court rejected the argument that commencement occurred when the commissioner mailed the notice. Citing several opinions, the court noted that administrative authorities are creatures of statute and have only such powers that statutes confer on them, and the court is required to prohibit any exercise of power if there is "reasonable doubt" as to its "lawful existence" (citation omitted). Id. at 489-90.

35. Reasonable doubt exists as to whether Complainant swore or affirmed to Respondent's appearance on August 15, 2011, at the special meeting of the City commission. To resolve this doubt in favor of jurisdiction is unsupported by the case law and risks ignoring the statutory requirement of a sworn complaint. If a complainant is not required to identify his complaints in a clear manner, but is allowed merely to attach a thick pile of news articles lobbing a variety of charges at public officials and meeting minutes covering a myriad of statements by the public and commission members,⁹ the sworn complaint form is a mere conduit of the unsworn complaints of the publisher and commission.

36. As for Count IV, the Ethics Commission lacks investigative jurisdiction, under section 112.322(1), Florida Statutes, and thus lacks the jurisdiction, under section 112.322(2)(b), Florida Statutes, to issue a public report finding that Respondent committed the violation alleged in Count IV. For these reasons, DOAH lacks subject matter jurisdiction over Count IV.

37. In the alternative,¹⁰even if the Ethics Commission has jurisdiction, the Advocate has failed to prove a violation of section 112.313(7)(a). This section 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, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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.

38. The Advocate bears the burden of proving the material allegations by clear and convincing evidence. Latham v. Fla. Comm'n on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).

39. In its proposed recommended order, the Advocate concedes, as it did in the Recommendation and Amended Recommendation, that the first clause of section 112.313(7)(a) does not apply to this case. The regulatory authority for the sale of alcoholic beverages rests with the state of Florida, although local governments may exercise a zoning-type authority as a pre-condition for an applicant to obtain the necessary state license. See generally JPM Inv. Grp. v. Brevard Cnty., 818 So. 2d 595, 597-98 (Fla. 5th DCA 2002).

40. As may be inferred from the Advocate's conflicting recommendations in the Recommendation and Amended Recommendation, the closer question is whether Respondent's employment with the Tiki Bar will violate the second clause of section 112.313(7)(a) by creating a "continuing or frequently recurring conflict" between his private interests and the performance of his public duties or "imped[ing] the full and faithful discharge of his public duties."

41. The Advocate's Recommendation reasons that Respondent's appearance at the August 15, 2011, special meeting of the City commission did not violate the second clause of section 112.313(7)(a) because the Tiki Bar sought the City to exercise only a zoning-type function on what appeared to be a one-time basis.

42. The Advocate's Amended Recommendation reasons that Respondent's appearance violated both prongs of the second clause--continuing or frequently recurring conflict and impedance of full discharge of public duties. The analysis contained in the second recommendation diverges from the first recommendation by noting that, in CEO 11-06, the Ethics Commission found a violation of the second clause when a public officer "represented clients before the officer's public board."

43. Discarding its earlier reasoning that the City commission was performing only a zoning-type function on what appeared to be a one-time basis, the Advocate in the Amended Recommendation reasoned as follows: Since Respondent is employed by Dave's Tiki Bar, and Respondent represented Dave's Tiki Bar before the City Commission he is in violation of the second part of the statute. In other words, Respondent would have had an interest in whether his employer could use the liquor license; consequently, he had employment that created a continuing or frequently recurring conflict between Respondent's private interests and his public duties, or impeded the full and faithful discharge of his duties as a City Commissioner.

44. Absent any supporting analysis, the causal links, "since" and "consequently," strain under the load that the Advocate has placed upon them. The facts of Count IV are undisputed and uncomplicated, so the Recommendation of no probable cause could not have been based on a misapprehension of the facts. Yet, the Advocate offers no analysis to support its reversal of a position that it had staked out only a couple of weeks earlier.

45. The Tiki Bar required a one-time approval--and, from all indications, a perfunctory one at that--from the City commission to obtain a 2COP license from the state of Florida. Absolutely nothing in the record supports an inference that the appearance at the August 15, 2011, special meeting was anything other than a one-and-done matter by Respondent--for the Tiki Bar and for any other resident or business within the jurisdiction of the City.

46. As noted above, the Advocate's Amended Recommendation relies on CEO 11-06 for the application of the second clause of section 112.313(7)(a) when a public officer represents "clients" before the officer's board or commission. The plural use of "client" is significant.

47. CEO 11-06 answers questions asked by a person who was recently appointed to a local government planning and zoning board, which voted on project site plans, conditional use requests for various land uses, special exception requests for relief from parking requirements, and proposed amendments to the city's land development regulations and comprehensive plan. The appointee is a planner and landscape architect in a multi-disciplinary firm that provides professional development services, including landscape architecture, planning, civil engineering, land surveying, and environmental design and permitting, and legislative services, such as obtaining rezonings and amendments to local ordinances, including comprehensive plans.

48. The first question in CEO 11-06 is whether the appointee would create a prohibited conflict of interest if he or his firm were to work for a client on a matter that might come before the planning and zoning board. The Ethics Commission answered this question in the negative. CEO 11-06 considers the two clauses of section 112.313(7)(a) and notes that, for a prohibited conflict to exist under either clause, "there must be an adequate intersection of the private interests of the officer and the functions, duties, or subject matter of his public agency."

49. In determining that an adequate intersection of the private interest and public duties did not exist in working for a client on a matter that might come before the planning and zoning board, the Ethics Commission cited CEO 81-84,¹¹ in which the Ethics Commission declined to find a prohibited conflict in the service on a planning commission by persons employed in real estate sales, land development, or contracting. CEO 81-84 reasons: "It is only in situations where the member's private interests are substantial and would be substantially affected by the commission's work, that he should not be permitted to serve on the planning commission."

50. The second question in CEO 11-06 asks when would the firm's work for a client intersect with the functions of the planning and zoning board so as to create a prohibited conflict of interest. Opining that the second clause of section 112.313(7)(a) is violated if a public officer represents clients before his board, the Ethics Commission cited three opinions involving professionals who might represent clients with some frequency before the board: an architect (CEO 77-126),¹² a land-use planning and development consultant (CEO 78-86),¹³ and an attorney (CEO 88-40).¹⁴ These professionals encountered prohibited conflicts of interests due to their professional obligations, which likely extended to representing multiple clients on multiple occasions before their respective boards and commissions.

51. A third question in CEO 11-06 asks whether the person requesting the opinion would suffer a prohibited conflict of interest if he, as a developer and not as a member of his firm, or his firm, as a developer, were to seek site plan approval from the planning and zoning board. Relying on the second clause of section 112.313(7)(a), the Ethics Commission answers this question in the affirmative without much discussion, stressing the commercial nature of development. It seems, though, that the facts supporting this answer include the facts considered in the first and second questions--i.e., the person requesting the opinion is a member of a multi-disciplinary planning and engineering firm that represents clients needing various approvals from the planning and zoning board.

52. Many of the same considerations inform CEO 77-126, which answers a question posed by an architect who has been appointed to the planning board. The architect represented his clients before the board "on a number of occasions." In particular, the architect had attended 26 of the 27 planning board meetings that had taken place while he was on the board, and he abstained from voting on 11 of 26 issues that were presented to the board. The Ethics Commission notes that the planning board's regulation of the architect's clients was "incidental . . . and passive," so there was no problem under the first clause of section 112.313(7)(a). But the Ethics Commission concludes that "represent[ing] a client before a board of which one is a member necessarily interferes with the full and faithful discharge of one's public duties and, particularly in the instant case where such representations are frequent, presents a continuing or frequently recurring conflict in violation of the second clause of s. 112.313(7)(a)." Accord CEO 78-86 (prohibited conflict from "more occasional representations" than in CEO 77-126);¹⁵ CEO 88-40 (prohibited conflict when an attorney's law firm "occasionally" represents clients before city council regarding zoning and variances).

53. None of these opinions supports the Amended Recommendation as to Count IV. Where there is some language in certain opinions that seems to predicate a prohibited conflict on a single representation of a single client, the holdings of the opinions are not so broad. And, of course, the ultimate issue is whether the facts in Count IV fall within the reach of the second clause of section 112.313(7)(a), not published opinions of the Ethics Commission.¹⁶

54. The Advocate thus has failed to prove by clear and convincing evidence that Respondent's appearance at the August 15, 2011, special meeting of the City commission violated the second clause of section 112.313(7)(a).

55. Lastly, Respondent's request for attorneys' fees and costs under section 57.105(5) is denied. As reflected in paragraph 15 of Respondent's proposed recommended order, his request for fees is predicated on the premise that the Advocate has prosecuted a case over which the Ethics Commission entirely lacked investigative jurisdiction. As noted above, the Ethics Commission has jurisdiction over Count I.

56. Alternatively, Respondent is not the "prevailing party" under section 57.105(5). The Advocate has prevailed as to Count I, but Respondent has prevailed as to Count IV. However, the parties' settlement agreement subordinated Count IV to Count I in terms of relief, so Respondent has not prevailed.

RECOMMENDATION

It is

RECOMMENDED that the Ethics Commission enter a final order dismissing Counts II and IV, determining that Respondent violated section 112.313(6) as alleged in Count I, and imposing an administrative fine of $3000, censure, and a reprimand against Respondent.

DONE AND ENTERED this 28th day of August, 2014, in Tallahassee, Leon County, Florida.

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ENDNOTES

^[1]Available at http://www.ethics.state.fl.us/opinions/11/CEO%2011-006.html

^[2]Actually, on March 26, 2013, the Ethics Commission transmitted this file to DOAH, where it was assigned Case 13-1099EC. However, on September 27, 2013, the Advocate filed a Motion to Relinquish on the ground that Respondent had just been convicted of two counts of bribery in federal court, and, if the conviction withstood post-trial review, the Advocate intended to ask the Ethics Commission to dismiss the pending charges on the ground that the public interest had been fully served by the convictions. The Administrative Law Judge granted the motion on the same date.

^[3]The relevant facts in the joint factual stipulation are that Respondent was a commissioner and vice mayor of the City at all material times and, as such, he was subject to chapter 112, part III, Florida Statutes; Respondent was the subject of a sworn complaint filed on May 3, 2012, and an amended sworn complaint filed on May 31, 2012; Respondent used a City credit card for personal use; Respondent represented his employer when it applied for a license from the City commission; Respondent disclosed his employment to the City commission; Respondent abstained from voting on the issue; and Respondent filed a Memorandum of Voting Conflict (Form 8B) for the abstention. Based on the post-hearing filings, especially Respondent's proposed recommended order, the Administrative Law Judge has imputed additional facts to the joint factual stipulation, as indicated in the endnotes four, six, and seven.

^[4]As the text accompanying this endnote states, the facts contained in the Complaint, Amended Complaint, and attached documents have not been established for their truth. The recommended order considers these documents strictly for the purpose of analyzing the jurisdictional issues.

Even though the joint factual stipulation identifies the Complaint and Amended Complaint, the parties did not stipulate into evidence the Complaint and Amended Complaint, nor did the Advocate offer these documents into evidence. If uncorrected, these omissions cast the jurisdictional issue into a different light unanticipated by both parties, as the evidentiary record would lack a sworn complaint of any sort, thus requiring a determination of no investigative jurisdiction over Count I or IV.

Based on the discussions of counsel at the abbreviated hearing and after reading the joint factual stipulation, the Administrative Law Judge has concluded that the Advocate's failure to admit into evidence the Complaint and Amended Complaint was inadvertent. Consistent with the identification of the Complaint and Amended Complaint in the joint factual stipulation, Respondent argues essentially that the Ethics Commission lacks investigative jurisdiction, not because it lacks a sworn complaint of any sort, but because, in the two filed sworn complaints, Complainant fails to state a complaint against Respondent. See Respondent's proposed recommended order, paragraphs four, five, eight, and nine.

Under the circumstances, the administration of justice would be poorly served by basing jurisdictional determinations on this inadvertent omission. The Administrative Law Judge could reopen the record to allow the Advocate to admit into evidence the Complaint and Amended Complaint, at least as conditioned in the text accompanying this endnote. But this would necessitate further delay in a case that, by DOAH standards, is already no youngster. The Administrative Law Judge has instead chosen to remedy the problem, consistent with the apparent intent of both parties, by imputing the admission of the Complaint and Amended Complaint, but not for the truth of their contents, to the joint factual stipulation.

^[5]MargateNews.net appears to be an online newspaper focusing on City news. According to the printed articles, the online newspaper has published since 2009 and employs "staff writers," although the names of the writers of the articles attached to the Complaint and Amended Complaint seem to have been redacted.

^[6]It is impossible to infer by clear and convincing evidence that all of the handwritten notes were prepared by Complainant. However, Respondent has not raised this issue in his Proposed Recommended Order, but instead assumes that Complainant made these notes. See Respondent's proposed recommended order, paragraphs four, five, and eight. The Administrative Law Judge has therefore imputed to the joint factual stipulation the fact that the Complainant wrote all of the handwritten comments, as well as the typewritten letter at page six of the Complaint.

^[7]The signature, however, bears hardly any resemblance to the signature on the Complaint. It is not inconsistent with the casual approach that Complainant took with respect to stating his complaints to the Ethics Commission that he elected not to sign the Amended Complaint, but merely to add his initials, although even the second initial does not appear to be in the same handwriting as that of the second name on the Complaint. Again, though, Respondent has not raised this issue, so the Administrative Law Judge has imputed to the joint factual stipulation that both complaint forms were duly signed by Complainant.

^[8]Rule 34-5.0043(1) and (2) adds:

The Commission has the duty to investigate all facts and parties materially related to the complaint at issue.

(1) Facts materially related to the complaint include facts which tend to show:

(a) A separate violation of Art. II, Sec. 8, Fla. Const. or the Code of Ethics by the respondent other than as alleged in the complaint and consisting of separate instances of the same or similar conduct by respondent as alleged in the complaint; or

(b) A separate violation of Art. II, Sec. 8, Fla. Const. or the Code of Ethics by the respondent from that alleged in the complaint which arises out of or in connection with the allegations of the complaint.

(2) Where facts materially related to the complaint are discovered by the investigator during the course of the investigation, the Executive Director shall order an investigation of them and the investigator shall include them in the investigative report. The Advocate may recommend and the Commission may order a public hearing as to those violations of the Code of Ethics which are indicated by such facts. From that point in the proceedings until final disposition of the complaint, such facts shall be treated as if they were initially alleged in the complaint at issue.

^[9] Attachments that bear no handwritten notation or mention in Complainant's typewritten letter paint vignettes of Respondent voting for a pay raise and property tax hike, voting on the personal use of City credit cards by him and by City employees in general, voting and abstaining from voting on applications for license approvals of other bars in the City, demonstrating financial instability and fiduciary irresponsibility, and suffering bad debts, unpaid judgments and a couple of residential evictions. Obviously, the burden imposed upon Complainant in selecting from these matters, even if by nothing more than circling them and indicating his assent, is slight, although nothing compels the Legislature to limit itself to easily satisfied burdens when setting the requirements for administrative jurisdiction.

^[10]The Administrative Law Judge recognizes that this legal conclusion may be within the substantive jurisdiction of the Ethics Commission, under section 120.57(1)(l), and the Ethics Commission may adopt a more liberal view of the jurisdictional requirement that a complainant swear to or affirm his complaint. Thus, even though the parties' agreement contemplated that the Administrative Law Judge would not consider Count IV on the merits, if he concluded that the Ethics Commission lacked investigative jurisdiction over this count, in an abundance of caution, the Administrative Law Judge has considered whether the Advocate has proved the material allegations of Count IV.

^[11]Available at http://www.ethics.state.fl.us/opinions/81/CEO%2081-084.htm

^[12]Available at http://www.ethics.state.fl.us/opinions/77/CEO%2077-126.htm

^[13]Available at http://www.ethics.state.fl.us/opinions/78/CEO%2078-086.htm

^[14]Available at http://www.ethics.state.fl.us/opinions/88/CEO%2088-040.htm

^[15]In CEO 77-126, the Ethics Commission declares in dictum that "any representation of a client for compensation before a board of which one is a member impedes the full and faithful discharge of one's public duties," but seems to condition this statement on its later statement that the conflict occurs "when, as a part of his profession or occupation, an individual undertakes to represent another person's interests before his own board."

^[16]Florida Administrative Code Rule 34-6.008 provides that an ethics opinion binds only the person seeking the opinion or the person with reference to whom the opinion was sought.

COPIES FURNISHED:

Kaye B. Starling, Agency Clerk
Florida Commission on Ethics
Post Office Drawer 15709
Tallahassee, Florida 32317-5709

Diane L. Guillemette, Esquire
Office of the Attorney General
The Capitol, Plaza Level 01
Tallahassee, Florida 32399-1050

David McLean
4926 South Hemingway Circle
Margate, Florida 33063

C. Edward McGee, Esquire
McGee and Huskey, P.A.
2850 North Andrews Avenue
Fort Lauderdale, Florida 33311

Virlindia Doss, Executive Director
Florida Commission on Ethics
Post Office Drawer 15709
Tallahassee, Florida 32317-5709

C. Christopher Anderson, III, General Counsel
Florida Commission on Ethics
Post Office Drawer 15709
Tallahassee, Florida 32317-5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.