11-006063EC In Re: Renee Lee vs. * Status: Closed Recommended Order on Wednesday, July 11, 2012.

Summary: Respondent misused her public position by writing a legal opinion, without proper factual inquiry or legal analysis, to justify a 1-percent salary increase for herself and others, without approval by the HBCC; recommend censure, reprimand, and fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: RENEE LEE , )

)

Respondent . ) Case No. 11 - 6063EC

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on May 9, 2012, b y video teleconference at sites in Tampa

and Tallahassee, Florida, before Administrative Law Judge

Elizabeth W. McArthur of the Division of Administrative Hearings.

APPEARANCES

For Advocate : Melody A. Hadley, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

For Respondent: Mark Herron, Esquire

J. Brennan Donnelly, Esquire

Messer, Caparello and Self, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

STATEMENT OF T HE ISSUE

The issue in this case, as stipulated by the parties, is

whether Respondent violated section 112.313(6), Florida Statutes

(2006), 1/ by drafting a legal opinion that justified a one - percent

raise in salary for herself and others without the need fo r

approval from the Hillsborough Board of County Commissioners.

PRELIMINARY STATEMENT

On September 25, 2009, George Niemann filed an ethics

complaint against Renee Lee (Respondent) with the Florida

Commission on Ethics (Commission), pursuant to chapter 11 2,

Part III, Florida Statutes, known as the Code of Ethics for

Public Officers and Employees (Code of Ethics). The Commission

conducted an investigation and issued its Report of Investigation

on July 25, 2011. On August 8, 2011, the Advocate for the

Comm ission (Advocate) submitted her recommendation that the

Commission find probable cause with regard to the allegations in

the complaint. On September 14, 2011, the Commission issued an

Order finding probable cause to believe that Respondent, while

serving as the Hillsborough County a ttorney, violated section

112.313(6)(Misuse of Public Position) by drafting a legal opinion

that justified a one - percent raise in salary for herself and

others without the need for approval from the Hillsborough Board

of County Commissioners (HBCC) .

The Commission then forwarded the complaint and related

materials to the Division of Administrative Hearings for the

purpose of conducting a public hearing as provided by section

112.322 and Florida Administrative Code Rule 34 - 5.010.

The hearing was initially scheduled for April 3 and 4, 2012.

A joint motion for continuance was granted, and the hearing was

rescheduled for May 9 and 10, 2012.

Prior to the hearing, the parties filed a Joint Prehearing

Stipulation in which they stipulate d to several facts and

conclusions of law. The parties ' stipulations have been

incorporated below to the extent relevant.

At the hearing, the Advocate presented the testimony of

Respondent, Frances (Beth) Novak, Patricia (Pat) Bean, and

Christina Swanso n. The parties offered Joint Exhibits 1

through 13, which were admitted in evidence; J oint E xhibit 13

presented additional testimony in the form of a T ranscript of the

deposition of Walter (Wally) Hill, with deposition exhibits.

The one - volume Transcript of the hearing was filed on

May 15, 2012. The parties agreed to file proposed recommended

orders by June 11, 2012. Both parties timely filed proposed

recommended orders, which have been considered in the preparation

of this Recommended Order.

FINDING S OF FACT

1. At all times material to this action, Respondent served

as the Hillsborough County a ttorney.

2. Respondent was hired in August 2004, by Pat Bean,

then - Hillsborough County a dministrator. Initially, Respondent

reported to the county administrator , who served as Respondent ' s

supervisor. However, shortly after Respondent was hired, a newly

approved Hillsborough County Charter took effect and changed the

organizational structure by taking the county attorney position

out from under the supervision o f the county administrator.

Under the new c ounty c harter, Respondent ' s line of reporting was

directly to the HBCC, which served as her supervisor.

3. Respondent ' s employment agreement with Hillsborough

County (Agreement) obligated her to perform the func tions and

duties attendant to the position of Hillsborough County a ttorney.

The Agreement specified that Respondent " shall devote all of her

professional or business time, attention and energies to

Hillsborough legal work[.] " Respondent generally describ ed the

scope of her duties as overseeing the prosecution and defense of

all actions related to Hillsborough County, rendering legal

opinions and advising administrative departments on issues that

were brought to the Office of the County Attorney (Office), and

supervising the attorneys and staff within the Office.

4. The administrative business of the Office was managed by

a non - lawyer office administrator, Beth Novak. Respondent

directly supervised Ms. Novak, who, in turn, supervised the

administrative su pport staff and handled such administrative

tasks as preparing draft budgets for Respondent ' s approval and

addressing the Office ' s computer technology needs.

5. The Office was divided functionally into separate legal

sections covering different practic e areas, such as land use,

real estate, commercial transactions, labor and employment/human

resources, and litigation. Each legal section had a managing

attorney who supervised several attorneys within the section.

Although Respondent generally supervise d these sections, she

described the sections as largely functioning independently, such

that she often did not get involved in the matters they handled.

6. Jennie Tarr was the managing attorney for the labor and

employment/human resources legal section, which handled all

non - litigation employment - related issues. For example, the

director of employee benefits in the county ' s human resources

department would bring issues related to employee benefits to

Jennie Tarr; if a legal opinion were needed on an emp loyee

benefit issue, it would have been requested from Jennie Tarr.

7. Respondent sometimes would receive requests for legal

opinions herself. On occasion, she would issue the legal opinion

herself. Otherwise, she would delegate the work to a subordinat e

lawyer by sending an email to someone in the appropriate legal

section and asking them to respond directly to the requestor.

8. In 2006, County Administrator Bean initiated a budget

efficiency challenge to department directors, asking them to

submit bud get efficiency proposals for 2006 and 2007 that would

reduce departmental costs without reducing services.

9. This was not a completely new effort; department

directors had been asked for years to find ways to cut costs in

their budget proposals, without great success. Therefore, in

2006, discussions were held between Pat Bean, the deputy county

administrator, Wally Hill, and the budget director, Eric Johnson,

to identify options for rewarding department directors who

submitted budget proposals that met t he efficiency challenge.

They wanted to provide a reward that would also serve as an

incentive for department directors who came up short to do a

better job cutting their budgets in the future.

10. Hillsborough County had three different employee award

p rograms. One was the extra mile award program. The recipient

of an award under this program would be issued a certificate with

no monetary value, to simply recognize the employee ' s efforts in

going the " extra mile. " All Hillsborough County employees wer e

eligible for this non - financial award, if nominated. Typically,

the deputy county administrator, who functioned as the county ' s

chief operating officer, would identify extra mile awardees and

coordinate with staff in the human resources department to ha ve

the certificates prepared. Ms. Bean, Mr. Hill, and Mr. Johnson

decided to use this award program to recognize all department

directors who submitted qualifying budget efficiency proposals.

11. In addition, Ms. Bean, Mr. Hill, and Mr. Johnson

discussed whether they also could use other award options that

offered a financial reward and incentive. First, they considered

whether they could make use of the productivity award program.

Under this award program, employees who made suggestions that

resulted i n cost savings could be nominated for a one - time cash

award, with the decisions on award issuance made by an executive

committee. The amount of this cash award was measured by a

percentage of the cost savings of the employee ' s suggestion, up

to a cap. In October 2006, Mr. Hill sought approval to issue

productivity awards to department directors who submitted

qualifying budget efficiency proposals. However, his request was

denied, because department directors were not eligible for

productivity awards; tha t award program was only available to

lower - level employees, and was not available to anyone at the

department - director level or above.

12. The only remaining option for providing a financial

reward and incentive in connection with the efficiency budget

proposals was the county ' s third award program, the special

one - percent salary increase award. This award program was

initiated at the suggestion of a former county administrator who

recognized that reward systems were in place for the county ' s

classified employees under the control of the Civil Service

Board, but that some device was needed to reward unclassified

county employees for superior or outstanding performance.

13. Ms. Bean and Mr. Hill believed that the special

one - percent salary award coul d be used to reward department

directors who submitted qualifying budget efficiency proposals

with three exceptions: the one - percent salary increase award

could not be given to department directors who were already

earning the maximum allowable salary lev el for their positions,

because their salaries could not be increased; the one - percent

salary increase also could not be given to former department

directors who had left their county jobs after submitting

qualifying budget proposals, because they were not earning a

salary that could be increased; and the one - percent salary

increase could not be given to the three department directors who

were contract employees under contract with the HBCC, because it

was believed that they were not eligible. These three contract

department directors were Ms. Bean, Respondent, and Rick Garrity,

who was the director of the county ' s Environmental Protection

Commission. They decided, in addition to the extra mile awards,

to go ahead with the one - percent salary increase award for all

department directors who submitted qualifying budget efficiency

proposals and who could receive the salary increase. For those

directors falling in one of the three exception categories, they

would just receive extra mile awards.

14. Extra mile award certificates were prepared for all

department directors submitting qualifying budget efficiency

proposals and were presented at a January 25, 2007, Board

meeting. The extra mile award recipients were also announced and

honored at a staff budget - kick off meeting held on February 1,

2007. At the February 1 budget kickoff, the honored department

directors were given one of two different memos acknowledging

their award(s). For those department directors just receiving an

extra mile award certificate, su ch as Respondent, their memo

acknowledged their budget efficiency proposal for which they were

being given an extra mile award certificate. For those

department directors who were also considered eligible for a

one - percent salary increase award, their mem o acknowledged their

budget efficiency proposal for which they were being given an

extra mile award certificate , and also, for which they would be

receiving a one - percent salary increase. As stated in the memo,

the one - percent salary increase was awarded retroactive to

January 7, 2007.

15. Respondent did not attend the budget kickoff. However,

she had received her extra mile award certificate, dated

January 2 5, 2007, and she also received a February 1, 2007, memo,

acknowledging her extra mile award (but not a one - percent salary

increase award), based on her department ' s qualifying budget

efficiency proposal.

16. After the meeting, the Office administrator, Ms. Novak,

sent a curious email to Respondent, stating:

At the budget kickoff meeting this morning ,

Wally handed out " Extra Mile Award " memos to

some of the Department Directors, Rick

Garrity, and you for your work during the

last budget cycle on efficiency measures.

Wally announced that each of you would be

given a $1,000 award! Congratulations!

No explanation was given for this message; Ms. Novak testified

that she did not recall these events or the email. The

information in the email was, at best, garbled, starting with the

inexplicable reference to a $1,000 cash award. In addition,

Ms. Novak app arently had not been aware that there were two

different versions of memos. The memo with a subject line called

"Extra Mile Award," described in the email, was the version given

to Respondent and others falling in one of the three exception

categories, an d the contents of that memo make clear that the

recipient is only receiving an extra mile award certificate. The

subject line of the other memo version was " Recognition of

efficiency. " This version of the memo was given to department

directors who also r eceived the special one - percent salary

increase award, as the contents of that different memo makes

clear.

17. Mr. Hill did not recall making any announcement of the

financial awards. If any such announcement was made, it would

stand to reason that th e announcement would have tracked the

contents of the two different February 1, 2007, memos -- that those

department directors receiving an " extra mile award " memo were

recipients of the extra mile award only, and that those

department directors receiving a " recognition of efficiency " memo

were recipients of both the extra mile award and a one - percent

salary increase award.

18. Respondent testified that she spoke with Ms. Novak

about Ms. Novak ' s email " later that afternoon " when Respondent

questioned Ms . Novak about whether Respondent could really

receive a financial award. Respondent elaborated as follows:

I was concerned about this being the

Productivity Award. And she said that it

wasn ' t the Productivity Award. And I was

really very skeptical about receiving an

award. And she said, " oh yeah, you have

that provision in your contract. " You know,

" let me get it for you. " And she brought my

contract into my office. And you know, it

was turned to the benefit section of it.

And that ' s the section that she referred to.

19. Approximately 90 minutes after Ms. Novak ' s email to

Respondent, Respondent sent an email to Ms. Bean and Mr. Hill, in

which she stated as follows:

After attending the Budget kick off meeting

this morning Beth [Novak] reminded me th at a

provision in my contract allows me to

receive the award . . . see page 10, Section

E. which states:

Hillsborough agrees to make available to the

Attorney such other benefits that are not

specifically covered by this agreement as

they now exist, and m ay be amended from time

to time, for other employees of

Hillsborough. . . .

Thank you for the award.

Renee Francis Lee, County Attorney

20. Contrary to Respondent ' s testimony, one of the few

things that Ms. Novak recalled clearly about the events in this

time period was that it was Respondent who asked Ms. Novak to

get Respondent ' s contract and that Ms. Novak was not asked her

opinion on that contract , nor did she recall offering her

opinion. Ms. Novak ' s version of the events is accepted as more

cre dible than Respondent ' s version. It is not credible that

Ms. Novak, a non - lawyer, would spontaneously offer advice to

Respondent regarding the interpretation of Respondent ' s

Agreement, much less that a " very skeptical " Respondent would be

immediately conv inced by this non - lawyer ' s legal opinion.

Instead, the implication of the credible testimony is that

Respondent wanted to attribute the suggestion and rationale that

she could accept a financial award to someone other than

herself.

21. Despite the fact that Respondent ' s email to Ms. Bean

and Mr. Hill did not explicitly refer to the salary increase

award, it was interpreted by Ms. Bean and Mr. Hill to mean that

Respondent believed she was eligible for the one - percent salary

increase award. Up to that poi nt, Mr. Hill and Ms. Bean

believed that Respondent was not eligible because of her

Agreement with the HBCC. Likewise, they believed that neither

Ms. Bean nor Dr. Garrity, the other two department directors

under contract with the HBCC, were eligible. Bas ed on

Respondent ' s email suggesting otherwise, Ms. Bean had the matter

referred to the human resources department to resolve.

22. According to Respondent, the next day (February 2,

2007), she received a telephone call from Christina Swanson

asking her fo r an opinion on the eligibility of Respondent,

Ms. Bean, and Dr. Garrity for the one - percent salary award.

Ms. Swanson was the division director of employee benefits in

the human resources department. She was acting in place of the

department director in following up on this matter. 2/

23. Ms. Swanson had been contacted by Debbie Dahma, an

employee in the executive compensation division of the human

resources department. Ms. Dahma told Ms. Swanson that

Respondent had requested a one - percent salary inc rease award and

asked Ms. Swanson to find out if Respondent was eligible.

Because Respondent was the one who requested the award,

Ms. Swanson thought it was appropriate to call Respondent

directly. Ms. Swanson told Respondent that she understood that

Res pondent had requested to be eligible for the one - percent

salary increase and asked her for a written legal opinion.

Ms. Swanson explained that she asked for a legal opinion , in

writing, " knowing the sensitivity of the issue[.] " She also

explained that sh e did not ask Jenny Tarr for this legal opinion

because she usually brought " benefit " issues to Ms. Tarr,

whereas this was a salary issue involving a specific employee ' s

contract.

24. Ms. Swanson said that she asked Respondent to give her

a written legal opinion addressing whether Respondent, Ms. Bean,

and Dr. Garrity -- the three department directors under contract

with the HBCC -- were eligible for the one - percent salary increase

award. Ms. Swanson did not give Respondent any deadline by

which, or time fra me within which, she wanted or needed the

legal opinion.

25. Respondent testified that she was busy on something

else that day, February 2, 2007, and as a result, this matter sat

on her desk all day. At the end of the day, she decided to just

handle it herself rather than to delegate it to Jenny Tarr or

some other lawyer, because " the contract was right there. " In

addition, Respondent testified that " I think, you know, for some

reason I feel like I remember that they were in a rush for

something or some body was going on vacation. Something was

happening that they needed it or wanted it right away. I had not

gotten to it all day, so I stayed actually and wrote the opinion

myself. " Respondent ' s feeling that she may have been asked to

expedite the legal opinion is rejected as not credible and

contradicted by Ms. Swanson ' s clear recollection that no time

frame was given. 3/

26. After admittedly not working on this matter all day,

Respondent issued her legal opinion by email sent to Ms. Swanson,

at 5:29 p . m ., on February 2, 2007. The legal opinion, in its

entirety provided:

Christina,

You have requested that I review the

contracts of three employees (Garrity, Bean

and Lee) to determine if they are eligible

to receive the 1% salary award granted to

the mana gement staff who found efficiencies

in their budget which contributed to

approximately $17 million savings in the

2006 - 2007 budget.

I do not have access to Garrity ' s contract,

but will be happy to review it when you

forward it to me.

As it relates to the Bean contract, language

supporting the award can be found in

Section 15, entitled Other Terms and

Conditions of Employment, subsection B.

reads [sic] as follows:

All provisions of the Hillsborough County

Charter and Code, and regulations and rules

of th e County relating to vacation and sick

leave, retirement and pension system

contributions, holidays, and other benefits

and working conditions as they now exist or

hereafter may be amended, also shall apply

to Employee as they would to other

managerial emp loyees of the County, in

addition to said benefits enumerated

specifically for the benefit of the Employee

except as herein provided.

As it relates to the Lee contract, language

supporting the award can be found in

Section XVI, entitled General Provisions ,

subsection E. which reads as follows:

Hillsborough agrees to make available to the

Attorney such other benefits that are not

specifically covered by this agreement as

they now exist, and may be amended from time

to time, for other employees of

Hillsboro ugh.

Please let me know if you have any other

questions.

Renee Francis Lee, County Attorney

[address, phone, email address]

27. Although Respondent ' s legal opinion acknowledged that

her task was to review the contracts, the legal opinion did not

ident ify other provisions of the contracts that could bear on

the framed question of eligibility " to receive the one - percent

salary award. " For example, in reviewing Respondent ' s

Agreement, well before one finds the " General Provisions "

section quoted , in part , in Respondent ' s opinion, one would find

Section III entitled, " Compensation. " This section provided in

pertinent part:

Hillsborough agrees to pay the Attorney for

services rendered pursuant hereto an annual

base salary of One Hundred Seventy Thousand

Do llars ($170,000), payable in installments

at the same time that other employees of

Hillsborough are paid. Hillsborough shall

consider additional salary or benefit

increases as it may deem appropriate no

later than 60 days after completion of the

Attorney ' s annual performance evaluation[.]

Respondent ' s legal opinion does not discuss the Compensation

section or why she concluded, if she did, that this section ' s

procedure for considering " additional salary or benefit

increases " was deemed not applicable to a " 1% salary award. "

Similarly, Respondent ' s legal opinion does not discuss or assess

the applicability of the " Salary " section in Ms. Bean ' s

contract, which is similar to the " Compensation " section in

Respondent ' s Agreement.

28. In her legal opinion, Re spondent represents that she

has quoted Section XVI, subsection E, of her Agreement in its

entirety by stating that the provision " reads as follows[.] "

Contrary to that representation, Respondent only selectively

quoted from the cited subsection, omitting the following

sentence that comes after the sentence quoted in the legal

opinion:

These benefits will include, but not be

limited to cafeteria plan options and

contributions to the Florida Retirement

System, holidays, and any other benefits for

specified sick leave accrual as are provided

for Hillsborough employees.

The omitted language would have reasonably suggested analysis,

or at least consideration of, the legal principles of contract

interpretation set forth in Florida cases by which the meaning

of a general term (such as " but not be limited to " ) is

determined by reference to the specific terms with which it is

grouped. 4/ Application of this sort of analysis could reasonably

lead one to conclude that this subsection has application to

employee benef its provided across - the - board to all county

employees by virtue of their status as county employees, because

that appears to be the nature of the specific benefits

mentioned. Respondent ' s legal opinion, by selectively quoting

from the subsection of her Ag reement that she chose to address,

omitted the legal analysis that would follow from the omitted

contract language.

29. Respondent ' s legal opinion separately sets forth

certain language from Ms. Bean ' s contract and from Respondent ' s

Agreement, without an y discussion or analysis of the

significance of differences in the quoted language. For

example, the provision relied on to support a one - percent salary

award to Ms. Bean refers to benefits " as they would [apply] to

other managerial employees of the Count y. " In contrast, the

quoted language from Respondent ' s Agreement refers to benefits

" for other employees of Hillsborough County. " Respondent ' s

legal opinion does not discuss the significance of this

difference, despite the fact that the issue as framed i n the

legal opinion is the eligibility for a one - percent salary award

granted to " management staff " in connection with their budget

efficiency proposals. Any analysis of the different contract

terms could have led Respondent to conclude that this award wa s

only available to managerial employees, and not to all employees

of the county.

30. In this regard, Respondent ' s framing of the issue is

itself inconsistent with the facts, which were that this

one - percent salary increase award was only available to certain

managerial employees, i.e., those who served as department

directors. For example, Ms. Novak, the Office administrator,

was a managerial employee, but she was not the department

director. So too, the managing attorneys of each of the

Office ' s leg al sections were managerial employees, but not

department directors. Therefore, had Respondent assessed the

significance of the " managerial employees " language in

Ms. Bean ' s contract, she might have concluded that this award

was not available to all other managerial employees of the

county. 5/

31. Respondent ' s legal opinion, on its face, appears to

acknowledge the nature of the award at issue, i.e., that it is

the special one - percent salary increase award. However,

Respondent testified that she misunde rstood the nature of the

award she was being asked to opine on and that her confusion was

caused , in part , by Ms. Swanson reading to her a description of

a one - time cash award program that was not a salary increase.

Respondent ' s testimony was not credible and was inconsistent

with other testimony of both Ms. Swanson and Respondent,

herself.

32. Respondent testified that she believed the award was a

$1,000 one - time cash award. While this testimony would be

consistent with Ms. Novak ' s misstatement in her email,

Respondent also testified that she was concerned that the award

was a productivity award and that she pointedly asked Ms. Novak

and was reassured that it was not a productivity award. There

were only two types of financial awards -- if the award was not a

productivity award, then it had to be a special one - percent

salary increase award. Respondent ' s testimony that she did not

understand that she was addressing a one - percent salary increase

award is belied by her use of the phrase " 1% salary award " in

the legal opinion and by her own expressed certainty that this

was not a productivity award (which would have been the only

type of award providing a one - time cash payment).

33. Respondent also attempted to blame Ms. Swanson for the

confusion and unce rtainty about the nature of the award on which

she opined. Respondent testified that Ms. Swanson did not

appear to know very much about the award at issue.

Inconsistently, Respondent also testified that Ms. Swanson

actually read to her a description of t he award from the

consultant ' s study that created the award program, which is how

Respondent was led to believe it was a one - time cash payment,

with caps. Ms. Swanson denied reading from the consultant ' s

study, testifying credibly that she did not have th at study at

the time.

34. If Respondent was actually confused or unclear about

the facts, it was incumbent on her, in the proper performance of

her professional duties, to make inquiry so as to be clear about

the facts on which she offered a legal opin ion. That is a very

basic obligation of any lawyer asked to give a legal opinion to

a client. 6/ Yet Respondent admitted that she made no such

inquiries. Had Respondent asked Ms. Swanson to direct her to

the person with information about the award, Respo ndent would

have been directed to Ms. Bean, Mr. Hill, and/or Mr. Johnson,

who could have explained their failure to gain approval to use

the productivity award program and that the financial award at

issue was a special one - percent salary increase award th at would

result in a one - percent salary raise to the recipients. Had

Respondent inquired, she could have been given the " recognition

of efficiency " February 1, 2007, memo provided to other

department directors, which specifically described the award.

35 . Respondent attempted to justify her failure to make

these inquiries by testifying to her belief that issuance of her

opinion was urgently needed -- testimony previously found not

credible. However, if Respondent truly was confused about the

facts on whic h she was opining on February 2, 2007, or lacked

sufficient time to properly analyze the contract language in

accordance with Florida law on contract interpretation, it was

incumbent on Respondent to express these limitations on her

ability to render a leg al opinion based on a complete

understanding of the facts and application of the law to those

facts. Moreover, Respondent ' s claim of urgency would not

explain why Respondent did not conduct any factual inquiry or

legal analysis before issuing a second leg al opinion six days

later, which extended her legal opinion to include Dr. Garrity

after she obtained his contract.

36. The point is not whether Respondent ' s legal opinion

was right or wrong; the point is that Respondent ' s legal

opinions failed to set forth a complete recitation of the facts

or a discussion of the legal conclusions that follow from a

complete recitation of the facts. Respondent claims confusion

about the facts, but no such confusion was expressed in her

legal opinion. Respondent claim s she was rushed, but that claim

was not credible and, significantly, no such limitation was

expressed in her legal opinion. If it was not possible for

Respondent to obtain a clear understanding of the complete facts

and to discuss the legal conclusions t hat flow from the complete

facts, it was incumbent on Respondent to specify the limitations

of her opinion. The proper performance of Respondent ' s

professional duties as Hillsborough County a ttorney required

nothing less.

37. Instead of properly perform ing her professional duties

by providing her client with the requisite independent

professional judgment based on a complete recitation of facts

and analysis of the law applicable to those facts, Respondent ' s

legal opinion on February 2, 2007, was a self - i nterested

advocacy piece. Other than adding language from Ms. Bean ' s

contract, the February 2, 2007, product was nothing more than a

repackaging of Respondent ' s February 1, 2007, email to Ms. Bean

and Mr. Hill that purported to describe a non - lawyer ' s opi nion

of Respondent ' s Agreement.

38. Respondent had a second chance to improve her product

when she issued a second legal opinion the next week addressing

Dr. Garrity ' s eligibility for the one - percent salary award.

Despite the additional time and the fa ct that Respondent did not

claim any rush in issuing this second legal opinion, Respondent

took no steps to address the deficiencies from the February 2,

2007, letter that Respondent sought to justify because of

perceived time pressure.

39. Respondent attempted to suggest that the facts

underlying her legal opinions were incomplete or confused

because there was great confusion at the time with regard to the

various award programs. That suggestion was not borne out by

the credible evidence. Ms. Swanso n admitted to not fully

understanding the financial award programs at the time, because

she was pinch - hitting for the department director. However, it

was clear from the credible evidence that the persons involved

in making the decision to give financial awards understood the

differences between the three award programs, understood that

they could not use the productivity award program, and

understood that the financial award they were giving was a

special one - percent salary increase award.

40. Respo ndent also seemed to suggest that her legal

opinions must have been proper and sufficient, because no one

asked her questions about them. In particular, Respondent

points to the fact that Ms. Swanson went to law school and

passed a bar examination, albeit that Ms. Swanson was admitted

to the Ohio State Bar in 1976 and did not practice law.

41. Ms. Swanson testified, credibly, that she did not

question Respondent ' s legal opinions because she did not believe

that was her place. Instead, she explained that she was just

looking to provide a written legal opinion on the question of

eligibility as back - up to provide to the employee relations

division of the human resources department, which processed the

paperwork that put through the one - percent salary increa ses.

42. Respondent testified that she was not aware that she

had been given a one - percent salary increase after she issued

her legal opinion. Respondent claimed to believe that she had ,

instead , received a $1,000 one - time cash award. Two years

later , an audit revealed that she and Ms. Bean had received the

one - percent salary increase continuously since 2007. Dr.

Garrity did not accept his one - percent salary increase award.

43. Respondent testified that she ultimately returned the

proceeds from t he one - percent salary increase. When asked why

she returned the money two years later, she testified as

follows:

Well, you know, there was such a brouhaha at

the board meeting that day. And I had never

intended to have a one - percent increase. I

thought it was an award. I thought it was a

one - time award. So, I returned it because,

if they didn ' t want me to have it, I should

give it back. If it was not what I intended

to opine on, then I didn ' t want to keep it.

So, you know, those were the reasons I ga ve

it back.

44. Implicit in Respondent ' s explanation is that if she had

realized that the one - percent salary " award " was a one - percent

salary " increase, " she would not have been able to opine that she

was eligible to receive it without approval by the H BCC, because

her Agreement required HBCC approval of salary increases. Yet,

assuming Respondent was really confused about this, any

appropriate inquiry by Respondent would have confirmed that the

only award she could have been opining on was a one - percent

salary increase. Whether her zeal to advocate for a financial

reward for herself and others caused her to purposely

mischaracterize her legal opinion after the fact or whether her

zeal simply caused her, at the time, to ignore the process

mandated by an attorney properly carrying out her duties to a

client in rendering a legal opinion, the result is the same. The

undersigned finds as a matter of ultimate fact that Respondent

acted with wrongful intent by placing her own self - interest in

securing the spec ial financial benefit she coveted above her

professional obligations to her client, the HBCC. Respondent did

not properly perform her professional duties when she issued

first one, and then another, legal opinion to justify a

one - percent salary increase f or herself and others without the

approval of the HBCC.

CONCLUSIONS OF LAW

45. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2011).

46. Secti on 112.322 and rule 34 - 5.0015 authorize the

Commission to conduct investigations and to make public reports

on complaints alleging violations of the Code of Ethics.

47. In this proceeding, the Commission, through its

Advocate, is asserting the affirmativ e of the issue: that

Respondent violated section 112.313(6), for which Respondent

should be penalized. Therefore, as the parties stipulated, the

Advocate has the burden of establishing by clear and convincing

evidence the elements of Respondent ' s alleged violations. Latham

v. Fla. Comm ' n on Ethics , 694 So. 2d 83 (Fla. 1st DCA 1997),

citing Dep ' t of Banking & Fin . v. Osborne Stern , 670 So. 2d 932

(Fla. 1996), and Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987).

48. As stated by the Florida Supreme Cour t:

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 explicit, and witnesses

must be lacking in confusion as to f acts in

issue. The evidence must be of such 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. 200 5) ( quoting Slomowitz

v. Walker , 492 So. 2d 797, 800 (Fla. 4th DCA 1983) ) . Accord

Westinghouse Electric Corp., Inc. v. Shuler Bros., Inc. , 590

So. 2d 986, 988 (Fla. 1st DCA 1991) ( " Although this standard of

proof may be met where the evidence is in conflic t, . . . it

seems to preclude evidence that is ambiguous . " ).

49. The Advocate ' s position in this proceeding is that

Respondent violated section 112.313(6) by using her position as

county attorney to draft a legal opinion that justified a

one - percent rais e in salary for herself and others without the

need for approval from the HBCC .

50. Section 112.313(6) provides as follows:

MISUSE OF PUBLIC POSITION. -- No public

officer, employee of an agency, or local

government attorney shall corruptly use or

attempt to use his or her official position

or any property or resource which may be

within his or her trust, or perform his or

her official duties, to secure a special

privilege, benefit, or exemption for

himself, herself, or others. This section

shall not be c onstrued to conflict which

section 104.31.

51. The term " corruptly " is defined by section 112.312(9)

as follows:

" Corruptly " means done with a wrongful

intent and for the purpose of obtaining, or

compensating or receiving compensation for,

any benefit r esulting from some act or

omission of a public servant which is

inconsistent with proper performance of his

or her public duties.

52. Breaking down the foregoing provisions into their

component parts, the Advocate ' s charge of a violation of

section 112. 313(6) requires proof of three distinct elements.

First, the Advocate must prove that Respondent was a public

officer, employee of an agency, or local government attorney at

the time of the alleged violation. Second, the Advocate must

prove that Responde nt used or attempted to use her official

position, or any other property or resources within her trust, or

performed her official duties to secure a special privilege,

benefit, or exemption for herself or others. Third, the Advocate

must prove that Respon dent acted corruptly, as statutorily

defined to mean that Respondent acted with wrongful intent and

for the purpose of benefiting herself or another from some act or

omission which is inconsistent with the proper performance of her

public duties.

53. Res pondent stipulated that she was a local government

attorney at the time of the alleged violation and , as such, is

subject to the requirements of the Code of Ethics. Therefore,

the first element necessary to prove a violation of section

112.313(6) is estab lished.

54. Based on the facts found above, the Advocate proved

that Respondent used , or attempted to use , her official position

and performed her official duties as Hillsborough County a ttorney

to secure a special privilege, benefit, or exemption for he rself

(and others), namely, the one - percent salary award. Respondent

asked for the award and advocated for the award. Respondent was

specifically asked to provide a written legal opinion addressing

whether a one - percent salary award was authorized by the terms of

her contract and by the terms of the contracts of two other

contract employees. Thus, Respondent was on notice that her

solicited written legal opinion would be relied on and that her

legal opinion confirming that she could be given the one - perc ent

salary award under the terms of her contract (and that the other

two contract employees could be given one - percent salary awards

under their contracts) would facilitate her (and others ' ) receipt

of that one - percent salary increase.

55. Finally, based on the facts found above, the credible

evidence established clearly and convincingly that Respondent

acted with wrongful intent and for the purpose of benefiting

herself and others by issuing a so - called legal opinion that was

not prepared in a manner con sistent with the proper performance

of her public duties as Hillsborough County a ttorney. As such,

the Advocate proved that Respondent acted " corruptly, " as that

term is statutorily defined.

56. Legal authorities uniformly provide that a lawyer ' s

profe ssional responsibility to his or her client includes the

obligation to act competently by conducting the appropriate

factual inquiry, research, and analysis of the law applicable to

the complete facts and exercising independent professional

judgment in pro viding candid advice. See , e.g. , Restatement of

the Law (Third), The Law Governing Lawyers, § 16A cmt. d. (2000)

(a lawyer ' s duties to a client include the duty of competence:

" [T]o perform the services called for by the client ' s objectives,

including app ropriate factual research, legal analysis and

exercise of professional judgment. " ). Accord R. Regulating Fla.

Bar 4 - 1.1. ( A lawyer " shall " act competently in representing his

or her clients); R. Regulating Fla. Bar 4 - 1.1. cmt. ( " Competent

handling of a pa rticular matter includes inquiry into and

analysis of the factual and legal elements of the problem " );

R. Regulating Fla. Bar 4 - 2.1 (When providing legal advice to a

client, " a lawyer shall exercise independent professional

judgment and render candid advic e. " ).

57. Professional publications have much to offer on the

subject of a lawyer ' s professional responsibilities when giving a

legal opinion to his or her client. For example, the " many

duties " of lawyers, when giving legal opinions, are discussed in

Charles E. McCallum and Bruce C. Young, Ethics Issues in Opinion

Practice , published in The Business Lawyer , Vol. 62, p. 417 (Feb.

2007). In discussing the interplay between a lawyer ' s duty to

conduct an appropriate fact investigation and a client - impo sed

limitation, the article observes that a limitation imposed by a

client " does not relieve the lawyer of the duty to provide

competent representation. " Id. at 421. Further, limitations

" that are material to the evaluation must be disclosed as part of

t he evaluation. " The article discusses a formal ethics opinion

issued by the American Bar Association ' s Standing Committee on

Ethics and Professional Responsibility which stated , as follows ,

with regard to a lawyer ' s professional responsibilities when

iss uing legal opinions:

In any event, the lawyer should, in the

first instance, make inquiry of his client

as to the relevant facts and receive

answers. If any of the alleged facts, or

the alleged facts taken as a whole, are

incomplete in a material respect, or are

suspect, or are inconsistent, or either on

their face or on the basis of other known

facts are open to question, the lawyer

should make further inquiry.

Where the lawyer concludes that further

inquiry of a reasonable nature would not

give him suff icient confidence as to all of

the relevant facts, or for some reason he

does not make the appropriate further

inquiries, he should refuse to give an

opinion.

See Id. at 422, quoting from ABA Comm. on Ethics and Prof ' l

Responsibility, Formal Op. 335 (1974 ).

58. As a result of these hallmark attributes of legal

opinions, Florida decisions recognize that a properly - issued

legal opinion, when shown to be based on complete facts from

proper inquiry, can be evidence of a lack of wrongful intent and

a lack of notice of the impropriety of action taken in reliance

on the legal opinion. See , e.g. , In re: George Blake , 2006 Fla.

Div. Admin. Hear. LEXIS 28 (Fla. DOAH Jan. 25, 2006) (Blake

sought and received a city attorney ' s opinion prior to acting,

which opined t hat his actions were lawful; " [a]dvice of counsel,

when based on a proper statement of the facts, as this was, is

not necessarily a complete defense, [but] tends to prove a lack

of wrongful intent, [and] negates the assertion [of] reasonable

notice that hi s conduct was inconsistent with proper performance

of his public duties. " ) .

59. In contrast, however, the lack of a proper predicate

for the legal opinion, such as incomplete facts, can give rise to

an implication of wrongful intent by the party responsi ble for

the lack of proper predicate. For example, in Knight Ridder,

Inc. v. Dade Aviation Consultants , 808 So. 2d 1268 (Fla. 3d DCA

2002), a public records case, the court considered an argument by

the public entity seeking to avoid a fee award against i t, that

its refusal to produce public records was reasonable and in good

faith because it was taken in reliance on a legal opinion issued

by independent counsel. The court rejected that argument because

the public entity failed to make a " full and complet e disclosure "

of the operative facts upon which the legal opinion depended[;] "

and it " misled counsel by withholding . . . the actual agreement "

on which the opinion was based. Id. at 1269. As such, the court

applied the rule " that attempts such as this to create a false

basis for one ' s legal position not only do not demonstrate good

faith, . . . but provide affirmative evidence of actual criminal

responsibility. " Id. The same rationale applies in this case,

except that here, it was the lawyer who faile d to conduct the

necessary inquiry of the facts, and who selectively omitted

certain facts, in issuing her legal opinions. Just as in Dade

Aviation Consultants , Respondent ' s acts and omissions provide

affirmative evidence of her wrongful intent.

60. In defending the propriety of her actions, Respondent

relies heavily on section 112.313(5), which provides, in

pertinent part: " No local government attorney shall be prevented

from considering any matter affecting his or her salary,

expenses, or other compen sation as the local government attorney,

as provided by law. " Respondent ' s argument is that because this

statute specifically authorized her to issue a legal opinion on

the subject of her salary or other compensation, her actions in

doing so must be deeme d, by definition, the proper performance of

her public duties.

61. Contrary to Respondent ' s characterization of section

112.313(5), the statute does not specifically authorize

Respondent ' s issuance of the legal opinions in the way she did,

with acts and omissions that were inconsistent with the proper

performance of her duties as county attorney. Instead, the

statute provides that local government attorneys are not

prohibited from considering matters that affect their salaries,

expenses, or other compen sation simply because of the subject

matter. That does not mean that in a particular case, such as

this one, local government attorneys cannot be found to have

misused their public position, as set forth in section

112.313(6). That Respondent is not auto matically prevented from

issuing a legal opinion on a matter affecting her compensation

cannot mean that Respondent is , thereby , free to abuse her

position and improperly issue a so - called legal opinion for the

purpose of securing additional compensation.

62. Recent Commission precedent confirms that a local

government attorney taking action that affects his compensation

may be found to have violated section 112.313(6) when the action

is shown to meet the statutory elements establishing a misuse of

publi c position. In In re: Gerald Buhr , a Joint Stipulation of

Fact, Law, and Recommended Order, accepted by the Commission at

its June 15, 2012, meeting, determined that Mr. Buhr, as counsel

for the City of Mulberry, violated section 112.313(6) by

increasing his hourly rate for legal services without c ity

c ommission notice or approval, contrary to his agreement with the

c ity c ommission. Mr. Buhr had already settled this matter with

the c ity, agreeing to refund amounts overpaid and to reduce his

hourly rate fo r additional legal services. As a result, the

Commission accepted the stipulation that a civil penalty of

$2,500 was appropriate for this violation.

63. In this case, it is particularly ironic that Respondent

relies on the language in section 112.313( 5). Respondent now

apparently accepts as a given, and implicitly asks the

undersigned to accept without hesitation, that the subject matter

of her legal opinion was " salaries . . . or other compensation. "

If that subject matter classification were as cle ar to Respondent

as she now argues, one is at a loss to explain how any objective,

professional legal opinion could have been properly issued

without any mention, much less discussion, of Article III

( " Compensation " ) in Respondent ' s Agreement, which includ es the

requirement for HBCC approval of any increases in salaries or

benefits.

64. Respondent does not address the subject of an

appropriate penalty if a violation of section 112.313(6) is

found. Within the framework of the penalty authority set forth

in section 112.317, the Advocate urges a recommended penalty of

public censure and reprimand and a civil penalty of $5,000. That

penalty is accepted as reasonable under the facts and within the

authorized range of penalties.

RECOMMENDATION

Based on the fo regoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Ethics

issue a final order and public report : (1) finding that

Respondent, Renee Lee, violated section 112.313(6), Florida

Statutes (2006) ; and (2) recommend ing as penalties to the proper

authority that Respondent be publicly censured and reprimanded,

and that a civil fine of $5,000 be imposed.

DONE AND ENTERED this 11th day of July , 2012 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

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

Di vision of Administrative Hearings

this 11th day of July , 2012 .

ENDNOTE S

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2006 version, which was the law in effect at

the time of the alleged statutory violation.

2/ Ms. Swanson explained that the human resources department

director, George Williams, had recently lost his wife;

Ms. Swanson and others were pitching in to cover his

responsibilities during this difficult time. This issue was new

territory for Ms. Swanson; a s she testified, she usually focused

on benefits, whereas this was a compensation issue and a specific

contract issue.

3/ It is a matter of record that at the time Ms. Swanson requested

a legal opinion from Respondent, the one - percent salary increase

awa rds had already been acknowledged in memos issued to the

non - contract department directors who qualified based on their

budget efficiency proposals. Therefore, the awards were not

being held up pending issuance of a legal opinion; the only

remaining quest ion was whether salary increases also would be

awarded to the three contract department directors. Further, as

the memos established, the one - percent salary increase awards

that were given were made retroactive to January 7, 2007. Thus,

there was no urge ncy to this matter that could possibly explain

Respondent ' s issuance of a rushed product.

4/ See , e.g. , Transcon Trailers, Inc. v. Northland Ins. Co. ,

436 So. 2d 380, 381 (Fla. 4th DCA 1983)(discussing maxim of

contract interpretation known as "' noscitur a sociis ' which means

that general and specific words capable of analogous meaning when

associated together take color from each other so that the

general words are restricted to a sense analogous to the specific

word. " ). The doctrine " ejusdem generis " i s a specific

application of this broader maxim whereby in the construction of

instruments, when certain things are enumerated and then a

general phrase is used which might be construed to include other

things, the general phase is interpreted restrictively , confined

to things of the same general kind or class as those specifically

mentioned. Id. ; Mann v. Thompson , 100 So. 2d 634, 638 (Fla. 1st

DCA 1958); Noble v. Kisker , 134 Fla. 233, 183 So. 836, 837

(1938).

5/ Yet another issue raised by the language of Ms. Bean ' s

contract , but not addressed in Respondent ' s legal opinion, is

that the quoted provision, by its terms, appears to apply only to

benefits that are set forth in " provisions of the Hillsborough

County Charter and Code, and regulations and rules of the

County[.] " Respondent ' s legal opinion did not identify any

provision in the County Charter and Code, or in county

regulations or rules, that provide for the one - percent salary

award for other managerial employees, so as to trigger this

subsection tha t would extend such a benefit to Ms. Bean. Similar

language is included in Dr. Garrity ' s contract, but Respondent ' s

February 8, 2007, legal opinion on that subject likewise fails to

address the meaning of this language or identify the pertinent

charter, c ode, regulation, or rule provision that would trigger

this clause.

6/ See , e.g. , R. Regulating Fla. Bar 4 - 1.1. ( " A lawyer shall

provide competent representation to a client " ); and R. Regulating

Fla. Bar 4 - 1.1. cmt. ( " Competent handling of a particular ma tter

includes inquiry into and analysis of the factual and legal

elements of the problem . " ). As made clear by legal authorities

discussed in the C onclusions of L aw below, this professional

responsibility of basic competency requiring a lawyer to conduct

i nquiry into and analyze the factual and legal elements of a

problem, has particular force when a client asks a lawyer to

render a legal opinion.

COPIES FURNISHED:

Virlindia Doss, Executive Director

Florida Commission on Ethics

Suite 201

3600 Maclay Bo ulevard, South

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

C. Christopher Anderson, III, General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Kaye B. Starling

Florida Commission on Ethics

Po st Office Drawer 15709

Tallahassee, Florida 32317 - 5709

Melody A. Hadley, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

Mark Herron, Esquire

J. Brennan Donnelly, Esquire

Messer, Caparello and Self, P.A.

26 18 Centennial Place

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be fil ed with the agency that

will issue the Final Order in this case.