10-002798EC In Re: Brice Harris vs. * Status: Closed Recommended Order on Monday, May 2, 2011.

Summary: Evidence demonstrated that Resp. was a low level employee at OTTED w/no substantial authority who coordinated efforts between the primary parties to a grant. These efforts were not substantial compared to the scope and effort of the primary parties.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: BRICE HARRIS , ) Case No. 10 - 2798EC

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to Notice, a final hearing in this matter was

conducted before Admi nistrative Law Judge Diane Cleavinger,

Division of Administrative Hearings, on October 24, 2010, in

Pensacola, Florida , and October 26, 2010, in Tallahassee,

Florida.

APPEARANCES

For Advocate: Melody A. Hadley, Esquire

Office of Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

For Respondent: Donald C. Holmes, Esquire

110 Mill Street

Greensboro , Maryland 21639

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Respondent violated

section 112.3185(3), Fl orid a Stat utes .

PRELIMINARY STATEMENT

On March 3, 2010, the Florida Commission on Ethics issued an

Order fi nding probable cause that Respondent, Dr. Brice Harris,

a s a former employee of the Governor's Office of Tourism, T rade

and Economic Development ( OTTED), violated section 112.3185(3),

Florida Statutes. Specifically, the Commission alleged that ,

after his employment with O TTED , Respondent violated section

112.31 85(3) by holding employmen t or a contractual relationship

with the Andrews Research and Education Institu te ( Andrews or

AREI ), in connection with a state contract in which he had

allegedly participated personally and substantially through

decision, approva l, disapproval, recommendation, rendering of

advice, or investigation, while an agency employee. Respondent

disputed the CommissionÓs allegations and requested a formal

administrative hearing. The matter was forwarded to the

Division of Administrative He arings.

At the hearing, Petitioner presented the testimony of seven

witnesses and offered 40 exhibits into evidence. Respondent

testified in his own behalf and presented the testimony of five

witnesses. Additionally, Respondent offered 15 exhibits into

evidence. All exhibits were admitted into evidence except for

RespondentÓs E xhibit 11 , which was not admitted into evidence.

After the hearing, Petitioner filed its Proposed

Recommended Order on February 28, 2011. Respondent filed his

Proposed Recommen ded Order on February 22, 2011 .

FINDINGS OF FACT

1 . T he Office of Tourism, Trade and Economic Development

(OTTED), is located within the Executive Office of the Governor

and is part of that agency . It is headed by a n Executive

Director.

2. OTTED assists the Governor, Lieutenant Govern or, and

Legislature in develop ing policies and strategies designed to

provide economic opportunities in Florid a , as well as, prom ote

an economic climate in which FloridaÓs businesses can be

competitive and productive . Such assistance include s grants to

a variety of organizations . These grants are implemented

through public/private partnerships for which OTTED provides

oversight.

3. Currently , OTTED oversees the activities of seven

public/private pa rtnerships which serve to increase trade, job

creation, and critical industry development in Florida. Two of

the public/private partnerships with which OTTED works are

Enterprise Florida, Inc. (Enterprise Florida ) and Space Florida,

Inc. (Space Florida)

4 . Ente rprise Florida was created as a nonprofit

corporation by c hapter 228 , Florida Statutes, and serv es as

FloridaÓs primary organization devoted to statewide economic

development. Its mission is t o diversify FloridaÓs economy and

create better pay ing jobs for its citizens by supporting,

attracting and helping to create globally competitive

businesses . Such assistance includes monetary support through

grants w here Enterprise Florida acts as a pass - through funding

entity for organizations .

5 . Enterprise Florida is governed by a Board of Directors

chaired by the Governor. The members hip of the Board of

Directors is statutorily prescribed and consists of certain

state officials or individuals wh o have been appointed by

various governmental offic ials. By statut e, Enterprise Florida

is not a s tate agency.

6 . Space Florida is an i ndependent s pecial d istrict of the

State of Florida, created by c hapter 331, Part II, Florida

Statutes. Like E nterprise Florida, it is not a s tate agency.

7 . Space Florida was crea ted for the purpose of fostering

the growth and economic development of the space industry in

Florida. As such , Space Florida fosters economic development

activities and projects to expand and diversify domestic and

international opportunities related to the space industry.

Towards that end, Space Florida supports , assist s , facilit ates

and/or consults on space - industry - related needs with governments

and private businesses that work toward developing specific

projects or component s of the space industry, including the

development of a space tourism industry . Space Florida's

assistance and support includes monetary support, through grants

or loans, for space related development.

8 . Respondent , Brice Harris, holds a Ph.D. in P olitics and

International Relations . On July 9, 2007, he was hired by OTTED

as an Economic Development R epresentative II . His salary was

$70,000 a year. He voluntarily left that position on August 15,

2008. During his tenure, he was considered a good e mployee who

was passionately intense about his duties and very knowledgeable

about the projects to which he was assigned .

9 . In the beginning of Respondent's employment , Keisha

Rice , who was then acting Director of OTTED, served as

Respondent's dir ect supervisor until around October 2007. At

that time, Dr. Dale Brill was appointed as the Direc tor of

OTTED.

10 . Respondent's unofficial title during his employment

was Defense and Space Coordinator. His primary duties at OTTED

were to coordinat e various military and aerospace - related

economic development activities in which the GovernorÓs office

ha d an interest. He also was responsible for developing and

maintaining good working relationships between the GovernorÓs

office and the senior officer s of several f ederal military

installations and Unified Combatant Commands located throughout

Florida. Respondent had similar responsibilities with respect

to representatives and employees of numerous s tate agencies,

public - private partnership organizatio ns, and private companies,

as well as business and community leaders throughout the s tate.

As such, Respondent was required to stay current on a variety of

economic opportunities in the military and aerospace fields.

His duties required that he communi cate with numerous

individuals in conne ction with the various military and

aerospace - related economic development activities in which OTTED

was involved and included attending conferences and seminars in

those fields. Indeed, Respondent Ó s primary function at OTTED

was to serve as a knowledge base and contact point for his

supervisors at OTTED and other public and private military and

aerospace officials who were interested in doing business in

those areas . Respondent Ós duties at OTTED did not encompass an y

statutory or delegated authority for decision, approval,

disapproval, or investigation with respect to any contract under

consideration by OTTED, or by or on behalf of any other entity

that worked with OTTED . To the extent Respondent had any

advising ca pacity , such capacity was limited to passing along

information about programs and funds to others.

11 . In addition, f rom July 9, 2007, to late January or

early February, 2008, Responde nt served as a "cont ract manager "

for OTTED. The evidence demonst rated that the duties of a

Ðcontract managerÑ involved the management of grants that OTTED

was involved in. These duties were administrative in nature and

consisted of reviewing reports from grantees and summarizing

those reports for the Director of OTT ED. These duties d id not

entail substantial or significant decision , approval,

disapproval, investigation or other control authority. These

duties did entail keeping up with a number of details related to

and the scope of potential and actual projects in which OTTED

was involved .

12 . However, RespondentÓs contract manager duties ended

shortly after Dr. Brill reorganized OTTED and fo rmally

transferred Respondent's contract manager responsibilities to

Ms. Rice in late January or early February 2008 . At the time,

Dr. Brill also became Respondent's direct supervisor due to some

serious personality conflicts between Ms. Rice and Respondent.

13 . Sometime prior to early October, 2007, Space Florida

began to focus on developing or utilizing current science,

technology and tourism business assets located in Florida for

gaining a foothold in the emerging space tourism industry . In

particular, Florida has a number of space - related assets like

various NASA facilities, retired military/space equipment an d

decommissioned military bases, as well as science an d technology

assets which could be used in developing a space tourism

industry. Indeed , Space Florida felt its development of the

space tourism industry in Florida was falling behind since

entities lik e Virgin Galactic were beginning to sell tickets for

space flights to private individuals without the involvement of

any space - related business in Florida.

14 . Toward that end, Space Florida was exploring the

development of a medically sound executiv e physical and training

program for individuals who might be interested in experiencing

low orbital space flight. Such a program was viewed as

essential to the development of a safe tourist exper ience for

individuals interested in taking a trip into space . The profile

for such a space tourist was generally wealthy, but untrained in

either the fitness or technical rigors of space travel.

Additionally, Space Florida felt that such individuals would

require insurance for such travel. Given these considerat ions,

Space Florida was looking for a medical facility with experience

in executive physicals, sports medicine, fitness training and

rehabilitation so that a program could be developed offering

initial physical evaluations for prospective space tourists wi th

training in needed areas to bring such a tourist to the level of

fitness and health required for high and low g - force situations

which occur with any space flight . Additionally, because

participation of a prospective space tourist in the program

would be for an extended period of time, S pace Florida was

interested in an institution that was located close to tourist

facili ties such a s hotels and restau rants . Similarly, because

part of preparing a space tourist for space flight would involve

some astrona ut type training, Space Florida wanted a facility

that was located close to specialized training equipment used

for training astronauts.

15 . In time, Space Florida developed a list of potential

facilities that might have the expertise and researc h

capabilities for creating a health/fitness/training program.

The list was developed from a variety of sources. The evidence

did not demonstrate that Respondent contributed the name of any

institution to this list.

16. However , even with the lis t , Space Florida was having

gr eat difficulty finding an institution that was interested in

pursuing the research necessary for the development of such a

health /fitness/training program or in developing the standard s

for such a progr am. Indeed, most of the facilities Space

Florida contacted did not call it back or indicat ed that they

were not interested in such a program.

1 7 . One of the businesses on the Space Florida list that

Space Florida was very interested in and was trying to contact

was the A ndrews Research and Education Institute (Andrews or

AREI) located in Pensacola, Florida. The institute is now known

as the Andrews - Poulous Research and Education Institute.

18 . AREI was a nonprofit subsidiary corporation of Baptis t

Hospital Corporat ion (Baptist or BHC ). Joe Story, M.D. , served

as AREIÓs president. T he Institute specialized in sports

medicine , human performance ana lysis , and related specialty

fields , including diagnostic imaging, multi - specialty surgery,

outpatient rehabilitation, a thletic performance/ training and

biomechanics . Additionally, AREI performed research and program

development for sports medicine, rehabilitation and training and

has developed such programs for professional, amateur and

Olympic sports and athletes .

19 . Around early October 2007, OTTED had funds available

that it needed to allocate to programs which had not yet been

funded. As part of his job duties, Respondent communicated with

Howard Haug , Vice President of Space Florida , asking for a list

of any unfunded programs it would like to have funded. Such

requests from OTTED were not unusual and occurred periodically.

20 . O n October 9, 2007, after a series of emails, Mr. Haug

emailed Respondent, as the person responsible for coordinating

OTTED's space efforts, regarding Space FloridaÓs interest in Ða

number of investment opportunities over the near and mid - near

term in the areas of Business Development, Education, Research &

Development and Workforce. Ñ The email contained a list of 11

i nvestment opportunities Space Florida was interested in funding

and pursuing. The list identified the desire of Space Florida

to pursue a Ðspace tourism marketing campaign and it [sic]

direct connection to current Florida tourism assets.Ñ

Specifically, Mr. Haug stated that s p ace tourism:

Ðrequires its participants to be medically and

physically ready and technically trained. Florida has

a number of current institutes and centers that will

allow it to serve this growing segment of the market

and in the long run enhance the state as a one - stop

location for commercial operations that service the

space tourism market.Ñ

Space Florida estimated t he costs for development of a medical

and training program for space tourism to be between $250,000

and $1, 000,000. Eve ntually, t he development of t hese standards

and the developme nt of a health/fitness/ training program became

known as Project Odyssey.

21 . The evidence did not demonstrate that Respondent had

any substantial or significant input into the development o f

Space Florida's ideas or "near - term unfunded opportunities."

Indeed, the October 2007 emails between Respondent and Space

Florida demonstrate that Space Florida developed these unfunded

opportunities. At best, although the evidence did not

demonstrate any specifics, Respondent may have edited the

language that Space Florida used in order to clarify the idea it

presented to OTTED . However, t he evidence did not show that

whatever editing Respondent may have done was significant or

that Respondent's role in the development of these ideas was

other t han technical . In fact, t he goal of the back and forth

communication between Respondent and Space Florida was to

coordinate and secure funding for Space Florida's potential

projects. The other goal was to keep Space Florida's

supervising agency OTTED apprised of ongoing developments in

this area and the work Space Florida was doing towards meeting

its mission of developing the commercial use of space in

Florida.

22 . Additionally, b ecause Space Florid aÓs inquiries of

other potential facilities had been met with little interested

response and s ince Respondent was from the GovernorÓs office and

the Pensacola area , Space Florida asked Respondent to coordinate

a meeting between Space Florida officials and Joe Stor y , M.D. ,

of AREI in order to move the communication along . Indeed,

throughout this process, Dr. Story was difficult to get in touch

with. The e viden ce showed that it was at this time in the

funding process that Respondent learned of Space Florida Ós

interest in AREI. In early November, Respondent began work on

setting up this meeting.

23 . At the same time, Respondent , as ÐEconom ic Development

Coordinator,Ñ had the responsibility to coordinate the

application process for potential grant applicants including

Space Florida and AREI . He also had the responsibility to

present complete applications to Dr. Brill for his consideration

and approval/disapproval, and to disseminate Dr. BrillÓs

decision to all relevant parties. As the beginning steps in the

funding process, Respondent forwarded Space FloridaÓs unfunded

projects list to his superiors in the Govern or Ós O ffice , began

to determine if there was interest in the project a nd identify

potential funding sources . At the time, Military Base

Protection (MBP) funds from OTTED and MBP funds from Enterprise

Florida were available. MBP funds are funds availa ble to

projects that involve the re - use of decommissioned military

assets such as those located at the Naval Aerospace Medical

Research Laboratory (NAMR L) in Pensacola, Florida. In order to

secure such funding, an applicant is required to submit a

letter/proposal requesting an MBP grant and demonstrating that

the proposal relates to the re - use of decommissioned military

assets. In this case, two grant r equest letters were necessary

since both OTTED and Enterprise Florida were responsible for MBP

funds.

24 . In order to obtain funding , several individuals from

Space Florida and Enterprise Florida developed a document titled

ÐScope of Work.Ñ The documen t was forwarded to Respondent to

keep him informed of Space FloridaÓs progress on fleshing out

its unfunded project. Respondent , in turn, forwa rded the

document to Dr. Story on November 2, 2007, and requested a

meeting between Space Florida officers and D r. Story for

November 27, 2007 . There was no clear or convincing evidence

that Respondent significantly contributed to this document.

25 . Later , Space Florida and AREI , as well as Enterprise

Florida, worked on developing a business model, proposed are as

of research , contractual deliverables, etc . A ll of this work

was leading to a Nondisclosure Agreement, a Memorandum of

Agreement (MOA) and would lead eventually to final contract

agreements between Space Florida, Enterprise , Florida , and AREI

so that t he project could be funded. However, t hings became so

confused with so many parties involved in the process that in

January 2008, Respondent was asked to be the Ðgo - to - guyÑ to

facilitate and coordinate communication between the various

parties and to keep track of the various stages and progress of

these partiesÓ negotiations .

26. It was also at this time that Dr. Brill removed

Respondent from Ms. RiceÓs supervision. Shortly after, in an

email regarding a lunch invitation dated February 12, 2008,

Respo ndent requested that Mr. Haug not discuss Ðour project in

front of her.Ñ The reference to ÐherÑ was to OTTED Deputy

Director Keisha Rice. However, this email reflects the extent

of the personality conflict and tension b etween Respondent and

Ms. Rice t hat caused the director of OTTED to remove Respondent

from Ms. RiceÓs supervision. In regard to this email, Mr. Haug

did not feel bound by such a request and would do what was in

the interest of Space Florida . The email does not demonstrate

that Respondent had substantial or significant authority or

influence in regards to Project Odyssey.

27. Additionally, on February 18, 2008, Respondent sent an

email to Mr. Haug that detailed staff requirements and salary

levels regarding Project Odyssey. However, the e mail reflects

information that Petitioner was passing along to other entities

involved in Project Odyssey that he had obtained from AREI .

There was no evidence that Petitioner developed or had input

into developing this information.

28 . Through the Febr uary - M arch time period, Space Florida

desired that a feasibility study of Project Odyssey be

completed. The request for such a study was not unusual since

it often dealt with uncharted and emerging markets in the

aerospace field. Throughout this time per iod, Space Florida and

AREI worked on funding such a study and the scope of that study

with the HAAS Center located at the University of West Florida

in Pensacola, Florida . Eventually the HAAS Center sent a

proposal to Respondent. Respondent forwarded th e proposal to

the relevant parties an d MOA (80809) was drafted by Space

Florida. As indicated, Respondent did pass along information

between the parties regarding the scope of the work. However,

this was information he obtained from discussions with othe rs

regarding the scope of the project. The evidence did not

demonstrate that Respondent acted in any substantial or

significant capacity or offered any substantial or significant

advice regarding this MOA. Indeed, the HAAS Center, Space

Florida, AREI and Enterprise Florida all had personnel that were

more than experienced and qualified to develop and did develop

the terms of the MOA and the terms of any contract with the HAAS

Center.

29. In March 2008, the University of West FloridaÓs Ha a s

Center for Bus iness Research and Economic Development began a

feasibility study for Project Odyssey that was paid for by AREI

through a $60,000.00 grant from Space Florida. Respondent wa s

provided a copy of the draft report of the study for review and

comment. A final copy was sent to Respondent on July 25, 2008.

The evidence demonstrated that the Haas Center and its

researchers were the author s of the report in question and w ere

responsible for the substance of the report. The evidence did

not demonstrate that Respo ndent significantly advised or

controlled the Haas study. He did provide useful information to

the Ha a s researchers and was helpful to them. He also provided

some suggestions regarding a few areas of the report. However,

the evidence did not demonstrate that this aid was substantial

or significant .

30. Ultimately, n o busine ss model was introduced into

evidence and it was unclear if a business model was ever

for mally developed. T he evidence was not clear what process had

to occur and what documents had to be in place for the project

to be presented to and funded by OTTED . Further, the evidence

did not demonstrate that Respondent had any substantial or

significant input into any proposed model, deliverables or other

matter discussed in these early negoti ations. The evidence did

show that Respondent received some copies of the parties Ó

working papers. However , neither the emails nor the testimony

at hearing show s that Respondent contributed significantly to

these early negotiations. Indeed, the emails r eflect that

Respondent acted as a coordinator for the parties and would pass

along information if he had it.

31. Eventually , AREI submitted a formal grant request to

OTTED and to Enterprise Florida . Petitioner acknowledged

reviewing a copy of the grant request before submission.

However, he did not draft the request. The request was

forwarded to OTTEDÓs executive director along with two other

grant requests from other entities.

32 . On March 24, 2008, AREI Ós grant request for the

development of a space flight research and training program was

approved by the executive director of OTTED at the requested

amount of $250,000.00. The evidence demonstrated that

R espondent did not recommend approval of the program to the

director, but only presented it to him along with the other two

requests which had been submitted for MBP funds . After

approval, R espondent, pursuant to his duties, notified Space

Florida on March 28, 2008, that AREIÓs grant had been approved

and that Space Florida was designated as th e contract

administrator of that grant.

33. An additional $250,000.00 for Project Odyssey was to

be provided by Enterprise Florida. At no time during his tenure

at OTTED was Respondent assigned any responsibilities for

OTTEDÓs program and funding agree ment with Enterprise Florida.

Nor was Respondent ever assigned any management or fiduciary

responsibilities for the MBP funds. The evidence demonstrated

that a recommendation that Space Florida be deemed the single

admin istrator of the grant to AREI , rath er than have Enterprise

Florida and Space Florida exercise joint administrative

oversight of the grant, was made to OTTED by an Enterprise

Florida employee, Rocky McPherson. Finally, a s to the

Enterprise Florida p ortion of the grant there was no clear or

convincing evidence which demonstrated Respondent played any

substantial or significant role in that application.

34. After the approval of the project, the parties

continued to negotiate the terms of the final project

agreements. Many emails were exchan ged between representatives

of the corporate parties and Respondent. In his role as

coordinator, Respondent emailed a multi - page action list that he

had developed earlier to Enterprise Florida on May 24, 2008. It

was not clear if the action list was sen t to any other entity.

The list contained a breakdown of steps that had been completed

to implement project Odyssey and steps that remained to be

completed. The list contained 34 separate items or tasks

separated into eight categories defined by the enti ties

involved. Persons responsible for each item were also listed.

There were seven items listed as being within RespondentÓs

responsibility. Three of those items reflected at least one

other pe rson responsible for that in addition to Respondent.

The r emaining 26 items reflected persons or groups, other than

Respondent, as responsible for them.

35. Of the seven items pertaining to Respondent, four of

those items fell under the OTTED/Space Florida category. Those

four items related to getting the ARE I gran t request at OTTED

and drafting, coordination and staffing of the OTTED /Space

Florida program and funding agreement. However, evidence showed

that Respondent was not the person who drafted the program and

funding agreement between Space Florida and OTTED. He was the

person who either passed the contract along to the respective

authorities to sign or monitored the progress of that contract

among its signatories. Additionally, t he evidence demonstrated

that the Director of OTTED , not Respondent, was the person

responsible for assigning staff duties in OTTED , leaving

Respondent to notify the appropriate person in OTTED that the

contract needed to be staffed. Two of the items that were

shared involved attending meetings with N aval A eronautic M edical

R e search L aboratory and the University of West Florida. Very

little evidence was introduced in regard to these items.

However, the evidence at the hearing was that RespondentÓs role

throughout Project Odyssey was to be familiar with and

coordinate efforts among the primary parties involved in Project

Odyssey. Given that evidence, the action list cannot be

interpreted to reflect a role outside of monitoring and

coordination for Respondent. In sum, the evidence demonstrated

that the vast majority of the ite ms on the action list were left

to others to negotiate and make decisions about. To that

extent, this action list does not demonstrate that Respondent

provided substantial or significant advice or approval to the

implementation of Project Odyssey.

36 . Ultimately, t he implementation of Proje ct Odyssey was

accomplished through multiple joint investment and funding

agreement s between Space Florida , Enterprise Florida and A REI .

At least two agreements were involved in the implementation of

Project Odyss ey: an agreement between Space Florida and AREI

dated July 8, 2008, and an agreement between Space Florida and

Enterprise Florida dated July 2, 2008.

37 . The evidence showed that a round June 2008, Space

Florida drafted the initial funding agreem ent for the grant

contract to A REI . The draft was sent to all the interested

parties for their comments and revisions. The draft was also

sent to Respondent in order to keep him informed of the partiesÓ

progress. Again, the evidence did not demonstrate tha t

Respondent acted other than a s a coordinator and facilitator in

reference to these contracts.

38 . Indeed, Respondent offered two minor comments on the

draft a greement between Space Florida and AREI . Of those two

comments, one concerned a n err or in describing equipment that

was to be decommissioned . In order to correct this error

Respondent suggested that the phrase Ðutilizing assets slated

for decommissioning as a result Ñ be substituted for Ðusing

equipment left at Andrews after the completio n.Ñ The second

suggestion that Respondent made was to advise of a punctuation

error in the document . Both of these comments were incorporated

into the final language of the Agreement. Neith er of these

comments was substantial or significant to Project O dyssey.

39 . Respondent also made one (1) other qualified comme nt

concerning the provision in the draft Agreement which related to

intellectual p roperty ownership rights. Respondent's comment

regarding the draft language was:

ÐIt seems to me that th is will negatively

affect AREI (AndrewsÓs) ability to license

the intellectual property to a commercial

spin - off company, which has been an

assumption underlying discussions up to this

point. I would think that, at a minimum,

the State of Florida, SF, and Andrews would

retain cooperative ownership rights. At

maximum, I would think Andrews would retain

those rights exclusively. Then again, IÓm

no contracts expert.Ñ

40 . However, t his comment was not incorporated into the

final language of the Agreem ent. Instead, the language used in

the final Agreement b etween Space Florida and AREI that

addresses intellectual p ro perty rights was inserted by Space

Florida , at Mr. Hau gÓs direction, and was derived from similar

language incorporated into other agreeme nts executed by Space

Florida with other entities. Moreover, the comment in light of

the testimony seems to be more of a reminder about what other

authoritative parties to these contracts had discussed in the

presence of Respondent. Such reminders are si mply secretarial

in nature and, while they may be helpful, are not substantial or

significant in the overall project.

41 . Ultimately, all of the agreements necessary to

implement and fund Project Odyssey were t he result of complex,

multi - tiered and multi - phased decision processes, inv olving

numerous organizational entities and individuals from each

organization . In fact, a t least 24 individuals in positions of

authority and senior to Respondent were responsible for

decision - making in the present cas e. Approval of the project

for funding was made by a unanimous vote of the 19 members of

the Space Florida Board of Directors. Drafting and e xecution of

the program and funding agreement between Space Florida an d AREI

required actions among numerous indi viduals in both

organizations , as well as their respective Boards. OTTED was

no t a signatory party to the Space Florida/ AREI grant contract .

Put simply, Respondent was a lower level employee of OTTED who

did not have authority or control over decisions made in regards

to Project Odyssey. The evidence was clear that all of the

primary entities involved in Project Odyssey had sufficient

expertise, knowledge and capabilities to create and negotiate

Project Odyssey. RespondentÓs knowledge was helpful, but it was

not substantial or significant given the authority and expertise

of the primary parties. Additionally, testimony at the hearing

by representatives of the primary entities demonstrated that

RespondentÓs role was a low - level role to facilitate, coord inate

and monitor the process of creating and the progress of this

project.

42 . The $500,000 program and funding agreement executed

b etween Space Florida and AREI in support of Project Odyssey

commenced on July 8, 2008. In early July, after the execut ion

of final contracts for Project Odyssey, Respondent wished to

leave s tate government and asked Dr. Story if he could apply for

the Project Odyssey Director position. Dr. Story thought that

Respondent should apply since he was fa miliar with Project

Odys sey. Respondent also advised Dr. Brill of his application

and intent to resign fro m OTTED.

43. At the direction of Dr. Brill, Respondent contacted

the GovernorÓs Deputy General Counsel, Gerald Curington, to

discuss the issue. Based on the information provided by

Respondent in which he indicates that he has a Ðlimited role in

the AREI grant process,Ñ Curington opined that no conflict

probably existed. The testimony at hearing demonstrated t hat

Respondent provided Mr. Cur ington with sufficient informati on

for him to understand RespondentÓs role in relationship to AREI

and Project Odyssey a nd that Mr. Cur ington understood that role

to be limited. OTTED Ós gener al counsel agreed with

Mr. Cur ingtonÓs assessment and advised both Dr. Brill and

Respondent of h er opinion.

44. In the meantime, Respondent was introduced to the

administration at AREI wh o voted on whether he could work with

AREI. Respondent was approved by AREI.

45. Thereafter, Respondent resigned on August 15, 2008,

and began work und er a contract with Baptis t Health Care

Corporation to supply consulting, support and coordination

services to AREI for Project Odyssey . Respondent was hired as

an independent contractor and was not employed directly by AREI.

However, AREI paid $150,000. 0 0 per year to Baptist for

RespondentÓs consulting services.

46. During his contractual employment with Baptist ,

Respondent contributed technical knowledge and expertise to

various administrative, research, and outreach activities in

furtherance of the sta ted goals and objectives of Project

Odyssey . Respondent did not have any authority to approve or

disperse funds derived from the Space Florida grant. However,

the evidence did not demonstrate that RespondentÓs employment

with BHC violated Florida law since his employment with OTTED

did not substantially or significantly contribute to the funding

or creation of Proje ct Odyssey. Given these facts , this action

should be dismissed.

CONCLUSIONS OF LAW

47 . The Division of Administrative Hearings has

j urisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2010).

48 . The Florida Commission on Ethics is authorized to

conduct investigations and to make public reports on complaints

concerning violati ons of chapter 112, part III, Florida

Statutes, the Code of Ethics for Florida Public Officers and

Employees.

49 . Respondent is alleged to have violated section

112.3185(3) by becoming employed with a business entity in

connection with a contract in whi ch he was substantially

involved . Section 112.3185(3) provides as follows:

No agency employee shall, after retirement

or termination, have or hold any employment

or contractual relationship with any

business entity other than an agency in

connection with any contract in which the

agency employee participated personally and

substantially through decision, approval,

disapproval, recommendation, rendering of

advice, or investigation while an officer or

employee.

50 . The Advocate has the burden to establi sh the

allegations in the Order Finding Probable Cause by clear and

convincing evidence. Latham v. Fla. Comm'n on Ethics , 694 So.

2d 83 (Fla. 1st DCA 1997); see also Dep't of Banking & Fin. v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Tur lington , 510 So. 2d 292 (Fla. 1987).

51 . Clear and convincing evidence requires more than a

preponderance of the evidence and less than the criminal

standard of beyond a reasonable doubt. In re Graziano , 696 So.

2d 744, 753 (Fla. 1997).

52 . As stated by the Supreme Court of Florida,

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and lacking in confusion as

to th e facts in issue. The evidence must be

of such a weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re Henson , 913 So. 2d 579, 590 (Fla . 2005), quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

5 3 . In order to establish a violation of section

112.3185(3), Florida Statutes, the following elements must be

shown :

a . The Respondent must have been an employee of the

executive or judicial branch of state government.

b . After retirement or termination from public service,

t he Respondent must have held employment with or had a

contractual relationship with a business entity.

c . Such employment or contractual relationship must have

been in connection with a contract in which Respondent

participated personally and substantially through decision,

approval, disapproval, recommendation, rendering of advice or

investigation while a n officer or employee of the execut ive or

judicial branch of state government.

5 4 . In this case, the clear and convincing evidence

established that Respondent was an employee of OTTED which is

part of the executive branch of state government . As such, the

Advocate has establish ed by clear and convincing evidence that

Respondent was an employee of an agency of state government as

contemplated by section 112.3185(3), Florida Statutes.

5 5 . Likewise , the clear and convincing evidence showed

that Respondent, after termination from public service, held an

employment or contractual relationship with Baptist Hospital,

providing consulting services to AREI on Project Odyssey .

Section 112.312(5), Florida Statutes, defines a Ðbusiness

entityÑ to mean Ðany corporation, partnership, limite d

partnership, proprietorship, firm, enterprise, franchise,

association, self - employed individual, or trust, whether

fictitiously named or not, doing business in this state.Ñ

Clearly both Baptist and AREI were business entities as defined

under Florida la w . Additionally, Respondent had a direct

contractual relationship with Baptist and an indirect

contractual relationship with AREI.

5 6 . The final element requires that the Advocate prove by

clear and convincing evidence that RespondentÓs employment o r

contractual relationship with Baptist must have been in

connection with a contract in which Respondent participated

personally and substantially through decision, approval,

disapproval, recommendation, rendering of advice or

investigation while an employ ee of the executive branch of state

government. The purpose of section 112.3185(3) is to prohibit

State employees from being able to create a position with a

private employer through influencing the award of a contract

with that employer or mismanaging th eir responsibilities over

that contract, and then leaving public employment to take that

private position . Additionally, t he Commission on Ethics, in

interpreting this statute, has limited the scope of this

statutory provision to activities related to the procurement

process. Commission on Ethics Advisory Opinion 83 - 8.

5 7 . Respondent argues that Project Odyssey is not a

procurement contract under section 215.97 , the Florida Single

Audit Act. Section 215.97(2) contains the following definitions

of " state financial assistance , " "state program," and "state

project,":

(s) ÐState programÑ means a set of special

purpose activities undertaken to realize

identifiable goals and objectives in order

to achieve a state agencyÓs mission and

legislative intent re quiring accountability

for state resources.

(t) ÐState projectÑ means a state program

that provides state financial assistance to

a nonstate organization and that must be

assigned a state project number identifier

in the C atalog of State Financial

Assista nce .

(q) ÐState financial assistanceÑ means state

resources, not including federal financial

assistance and state matching on federal

programs, provided to a nonstate entity to

carry out a state project. ÐState financial

assistanceÑ includes the types o f state

resources stated in the rules of the

Department of Financial Services established

in consultation with all state awarding

agencies. State financial assistance may be

provided directly by state awarding agencies

or indirectly by non - state entities. Ð State

financial assistanceÑ does not include

procurement contracts used to buy goods or

services from vendors and contracts to

operate state - owned and contractor - operated

facilities . ( Emphasis added. )

5 8 . However, the exclusion of procurement co ntracts from

the definition of state financial as sistance serves only to

protect contracts for services on state projects funded by state

financial assistance or grants from being subject to the

requirements of FloridaÓs competitive procurement law. These

definitions do not serve to limit the definition of what

constitutes a procurement contract under section 112.3185(3) .

To interpret section 112.3185(3) as limited by the Single Audit

Act would leave a gaping hole in the statute Ó s purpose to

prohibit s tat e employees from being able to create a position

with a private employer through substantially and significantly

influencing the award of a grant or contract to that employer .

In that regard, the evidence demonstrated that Ð the program and

funding agreeme nt,Ñ between Space Florida and AREI was a n

enforceable contract for consideration to procure the expert

services of AREI to develop a health/fitness/train ing program

for Space Florida w hich was named Project Odyssey. See In Re:

Thomas K. Doughty , Case No . 06 - 4829 (Fla. DOAH Aug . 7, 2007 ) .

5 9 . The question then becomes whether Respondent

participated substantially through decision, approval,

disapproval, recommendation, rendering of advice or

investigation in the Project Odyssey contract.

60 . For purposes of implementing the prohibitions

co ntained in section 112.3185(3) the Commission on Ethics, in

Advisory Opinions 00 - 6 and 01 - 6, noted the following:

To participate ÒpersonallyÓ means directly,

and includes the participation of a

subordinate wh en actually directed by the

former Government employee in the matter.

ÒSubstantially,Ó means that the employeeÓs

involvement must be of significance to the

matter, or form a basis for a reasonable

appearance of such significance. It

requires more than of ficial responsibility,

knowledge, perfunctory involvement, or

involvement on an administrative or

peripheral issue. A finding of

substantiality should be based not only on

the effort devoted to a matter, but on the

importance of the effort. While a serie s of

peripheral involvements may be

insubstantial, the single act of approving

or participation in a critical step may be

substantial. (citing 5 C.F.R. Section

737.5(d)).

6 1 . In this case, the evidence demonstrated that one of

RespondentÓs many duties a t OTTED was to facilitate, coordinate

and monitor the process that developed into Project Odyssey .

However, the evidence demonstrated that Respondent was a low -

level employee with no authority or decision making ability

concerning the contract at issue. Respondent's job at OTTED was

to coordinate and assemble data from all interested parties.

O thers decided about funding, and the terms of the contracts

which created Project Odyssey.

6 2 . Assembling the needed application documents and

presenting opt ions for funding of projects in the course of

one's official duties as a lower level employee of a state

agenc y is not the same thing as participating in the award of a

contract and is neither significant nor substantial in the scope

of that project . Like wise, the evidence did not clearly or

convincingly demonstrate that coordinating the efforts of others

is substantial or significant to the scope of a project. Such

activities might make things easier, but they do not

significantly impact on the essential terms of the project

itself. In short , the evidence did not demonstrate that

RespondentÓs employme nt with BHC violated s ection 112.3185 ,

since his employment with OTTED did not substantially or

significantly contribute to the funding or creation of Proje ct

Odyssey. Therefore, this action should be dismissed.

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED that the Florida Commission on Ethics enter a

Final Order and Public Report finding that no viol ation of

section 112.313(6) has been demonstrated.

DONE AND ENTERED this 2nd day of May , 2011 , in Tallahassee,

Leon County, Florida.

S

DIANE CLEAVINGER

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 nd of May , 2011 .

COPIES FURNISHED :

Melody A. Ha dley, Esquire

Office of Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Donald C. Holmes, Esquire

110 Mill Street

Greensboro , Maryland 21639

Whilden S. Parker, Esquire

Post Office Box 565

Ruskin, Florida 33575 - 0565

Phili p C. Claypool

Executive Director and General Counsel

Florida Commission on Ethics

3600 Maclay Boulevard, South, Suite 201

Post Office Drawer 15709

Tallahassee, Florida 32317

Kaye Starling, Agency Clerk

Florida Commission on Ethics

3600 Maclay Boul evard, South, Suite 201

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 t his Recommended Order should be filed with the agency that

will issue the Final Order in this case.