14-001114EC In Re: David Mclean vs. * Status: Closed Recommended Order on Thursday, August 28, 2014.

Summary: Ethics Commission did not have jurisdiction over count for which it could not be clearly determined that the complainant had sworn to the underlying facts. As to other count, Advocate failed to prove substantial conflict prohibited by 112.313(7)(a).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Respondent.

_______________________________/

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 tele conference in Lauderdale Lakes and

Tallahassee, Florida.

APPEARANCES

For Advocate : Diane L. Guillemette, Esquire

Advocate for the Florida Commission

on Ethics

Office of the Attorney General

The Capitol, PL - 01

Tallahassee, Florida 32399 - 1050

For Respondent: E. Edward McGee, Esquire

McGee & Huskey, P.A.

2850 North And rews Avenue

Fort Lauderdale, Florida 33311

STATEMENT OF THE ISSUE S

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

s ection 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

beha lf 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, 20 1 2, the Executive Directo r 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

impr operly 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 cha rge 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

bev erage 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 commiss ion 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 advis ed 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 furt her 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 b ar.

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

m eetings 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 cr edit

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

applicatio n 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, an d 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 b elow, 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 alco holic

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, 1/ which 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 Responden t'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 o f 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 fi nd 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 112.31 3 (7)(a). The

Amended Recommendation concludes, though, that the facts

constitute a violation of t he second clause of

section 112.31 3 (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 in terests 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, I I, 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, dur ing 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 juri sdiction 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 p enalty 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 Ame nded 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 establi shing 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.

FINDING S OF FACT

1. The Complaint is on a Ethics Commission form (Form 50)

that asks the complainant for a full explanation of the

comp laint. 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

complai nt 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, c ontains

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 r eports 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 Respo ndent

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

Amende d 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 tha t 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 Resp ondent 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 Respon dent 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 pa ge

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 a s 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 ca rd. 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 promisso ry 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 ha ndwritten

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 t hat 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 attorn ey 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 cla rify 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. Accor ding 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 Et hics 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 o rder 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 p rovide 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 ca rd "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 th en

"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 r ight 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 restri cting 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 ca rd 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 a ppear 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, Florid a 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 befor e 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 Conflic t.

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

betw een 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 impo sed 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 Flor ida

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

bre aches 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 Co mplainant 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 know ledge 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 comp laint 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 lett er. 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 Complain ant

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 swor e to -- the

charges set forth in Count I. Complainant stated that Respondent

misused a City credit card in the handwritten notes on the

following docume nts: 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 wi th 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 commissio n 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 i n 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

jurisdic tional 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 t hat 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.

Int ernationa l Co. , 89 So. 2d 488 (Fla. 1956), the Florida Hotel

and Restaurant Commission er 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 all eged 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 persona lly . . . 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

opinio ns, 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" (ci tation 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 unsu pported 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 ch arges 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 C ommission 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 Cou nt

IV. For these reasons, DOAH lacks subject matter jurisdiction

over Count IV.

37. In the alternative, 10/ even 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

emp loyee, 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 i mpede

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.

C om m Ó n on Ethics , 694 So. 2d 83 (Fla. 1st DCA 1997).

39 . In its pr oposed 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 wit h 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 C n ty. , 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 Responden t'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 rea soning 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 con tinuing 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 "con sequently," 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 of fers 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 offi cer'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

request s 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 ord inances, 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 bo ard. 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 be fore 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 contr acting. 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 cons ultant (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 respe ctive 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 see k site plan approval from

t he planning and zoning board. Relying on the second clause of

section 112.313(7)(a), t he Ethics Commission answers this

question in the affirmative without much discussion, stressing

the commercial nature of development. It see ms, 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 vari ous

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 Commiss ion 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 112.3 13 (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 vi olation 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 cit y 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 sin gle 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 . Th e 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 a ttorneys' fees and

costs under section 57.105(5) is denied. As reflected in

paragraph 15 of Respondent's p roposed r ecommended o rder , 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 Respond ent 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 C ounts 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 2 8 th day of August , 2014 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah .state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 8 th day of August , 2014 .

ENDNOTE S

1 / Available at

http://www.ethics.state.fl.us/opinions/11/CEO%2011 - 006.html

2 / Actually, on March 26, 2013, the Ethics Commission tr ansmitted

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 convi ction

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 sa me 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 o f 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 disc losed 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

r ecommended o rder 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 unanticipate d

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 complain t against Respondent. See Respondent's

p roposed r ecommended o rder , 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 tha t, 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 tr uth 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 t he 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, Re spondent 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 Complai nt. 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 d oes 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

complain t 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

compl aint 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 residenti al

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 bur dens when setting the requirements for administrative

jurisdiction.

1 0/ 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

Com mission 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.

1 1/ Available at

http://www.ethics.state.fl.us/opinions/81/CEO%2081 - 084.htm

1 2/ Available at

http://www.ethics.state.fl.us/opinions/77/CEO%2077 - 126.htm

1 3/ Available at

http://www.ethics.state.fl.us/opinions/78/CEO%2078 - 086.htm

1 4/ Available at

http://www.ethics.stat e.fl.us/opinions/88/CEO%2088 - 040.htm

1 5/ 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."

1 6/ F lorida A dministrative C ode R ule 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 157 09

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

M cGee 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

Flori da 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 thi s Recommended Order should be filed with the agency that

will issue the Final Order in this case.