12-002509EC In Re: John Marks vs. * Status: Closed Recommended Order on Tuesday, November 27, 2012.

Summary: The Advocate failed to prove by clear and convincing evidence that Respondent violated section 112.3143(3), Florida Statutes, by voting on matters that would inure to the special private gain or loss of a principal by whom he was retained.

STATE OF FLORIDA 12-2509EC

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: JOHN MARKS, ) Case Nos. 12-2508EC

Respondent. )

RECOMMENDED ORDER )

)

A formal hearing was conducted in this case on October 8,

2012, in Tallahassee, Florida, before Lawrence P. Stevenson, a

duly-designated Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Advocate: Diane L. Guillemette, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: Barry Richard, Esquire

Greenberg Traurig, P.A.

101 College Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues are whether Respondent, John Marks, committed

the following violations as alleged in the Ethics Commission's

two Orders Finding Probable Cause, both dated June 20, 2012:

a. As to DOAH Case No. 12-2508EC, whether

Respondent violated section 112.3143(3)(a),

Florida Statutes, by voting on September 15,

2010, on a measure that would inure to the

special private gain or loss of the Alliance

for Digital Equality ("ADE"), a principal by

which Respondent was retained.

b. As to DOAH Case No. 12-2509EC, whether

Respondent violated s ection 112.3143(3)(a),

Florida Statutes, by voting on March 28,

2007, September 19, 2007, June 13, 2007, and

June 18, 2008, in connection with matters

that inured to the special private gain or

loss of Honeywell, a principal by which

Respondent was retained.

PRELIMINARY STATEMENT

On June 20, 2012, the Commission on Ethics ("Commission")

entered an Order Finding Probable Cause finding that there was

reasonable cause to believe that Respondent, as Mayor of the

City of Tallahassee (the "City"), violated section 112.3143(3),

Florida Statutes, 1 / by voting to approve the City's participation

in the Federal Broadband Technologies Opportunity Program

("BTOP") in partnership with ADE, a business entity for which

Respondent served in a compensated position.

Also on June 20, 2010, the Commission entered another Order

Finding Probable Cause, this one finding that there was

reasonable cause to believe that Respondent, as Mayor of the

City, violated section 112.3143(3) by voting on March 28, 2007,

September 19, 2007, June 13, 2007, and June 18, 2008, on a matter

that inured to the special private gain of Honeywell, a principal

by which Respondent was retained.

On July 23, 2012, the Commission referred both matters to

the Division of Administrative Hearings ("DOAH") for the

assignment of an administrative law judge and the conduct of a

formal hearing. The case involving Respondent's vote on a matter

concerning ADE was assigned DOAH Case No. 12-2508EC, and the case

involving Respondent's votes on matters concerning Honeywell was

assigned DOAH Case No. 12-2509EC. On August 1, 2012, the parties

filed a Joint Motion to Consolidate the cases for hearing, which

was granted by order dated August 2, 2012.

The final hearing was scheduled for October 8 and 9, 2012.

The hearing was convened and completed on October 8, 2012.

At the outset of the final hearing, the parties presented

Joint Exhibits 1 through 19, which were admitted into evidence.

The Advocate presented the live testimony of James English, City

Attorney for the City; Donald DeLoach, the City's former chief

information systems officer; State Representative Alan Williams,

a former aide to Respondent; and Respondent. Respondent

presented the live testimony of City Commissioners Mark Mustian,

Gil Ziffer, and Debbie Lightsey, and proffered the testimony of

City Commissioner Andrew Gillum without objection. The parties

stipulated to the introduction of the deposition transcripts of

Carrie Blanchard, a former aide to Respondent; Bueno Prades, an

account executive for Honeywell; former Adorno & Yoss attorneys

George Yoss, Anthony Upshaw, and Julie Feigeles; and former

Adorno & Yoss comptroller Bob Kulpa.

The one-volume transcript of the hearing was filed at DOAH

on October 22, 2012. The parties timely filed their Proposed

Recommended Orders, which have been fully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. At the time of the hearing, Respondent was serving as

Mayor of the City, a position he has held since March 2003. The

City has a commission/manager form of government. The City

Manager is the chief executive officer in control of the day-to-

day operations of the City government. The City Commission

("Commission") is the legislative arm of the government. The

Mayor is a voting member of the Commission. He presides at

Commission meetings, but otherwise has no more power than any

other member of the Commission.

2. As Mayor and a member of the Commission, Respondent is

subject to the requirements of section 112.3143(3)(a), which,

among other things, prohibits a local public officer from voting

in an official capacity upon any measure that he or she knows

would inure to the special private gain or loss of any principal

by whom he or she is retained.

Facts as to DOAH Case No. 12-2508EC

3. Pursuant to the American Recovery and Reinvestment Act

of 2009 , the BTOP was established as a grant program administered

by the National Telecommunications and Information

Administration ("NTIA") within the U.S. Department of Commerce.

The BTOP funded projects to bring broadband internet

infrastructure and service to underserved communities in both

rural and urban areas.

4. In 2009, the City made an application for a BTOP grant

toward establishing the City as a hub for providing technology

services to surrounding cities and counties. The City would

establish a shared services platform to bring information

technology services to smaller communities unable to obtain such

services on their own. This application was turned down.

5. The City's BTOP application had been prepared by Donald

DeLoach, the City's chief information systems officer, and

Carrie Blanchard, Respondent's chief of staff. After the grant

application was rejected, Respondent suggested to Ms. Blanchard

that ADE had experience in putting together such grants and that

she "might want to consider them for something in the future."

6. ADE is an Atlanta-based not-for-profit organization

established to assist in the development and deployment of

broadband technology to underserved communities. Between

April 2007, and October 2010, Respondent served as a member of

ADE's "Board of Advisors," a body separate from ADE's Board of

Directors. Respondent advised ADE's staff on telecommunications

and broadband technology issues but was not involved in the

operational aspects of the company. For his continuing

availability as a consultant, Respondent was paid $2,000 per

month by ADE. Respondent's annual CE Form 1, Statement of

Financial Interests, disclosed ADE as a primary source of income

for the years 2007, 2008, 2009 and 2010.

7. Ms. Blanchard passed Respondent's recommendation on to

Mr. DeLoach, who testified that they took a look at the company

and liked what they saw. They decided to involve ADE in the new

project that was taking shape for the City's second BTOP

application. Both Ms. Blanchard and Mr. DeLoach testified that

Respondent was not involved in preparing the second BTOP

application, and that they felt absolutely no pressure from

Respondent to use ADE in the project.

8. ADE was contacted and agreed to participate in the

project. Claire Lawson of ADE spoke with Mr. DeLoach and

Ms. Blanchard on numerous occasions to clarify points in the

application regarding ADE's participation.

9. In March 2010, the City submitted its BTOP grant

application to the NTIA. The executive summary of the proposed

project described its intent as follows:

The Apalachee Ridge neighborhood and the

Southside of Tallahassee have been

historically underserved in terms of

technology and access to broadband. Many of

the area's residents are minority, low-

income families with limited opportunities

to access the wide variety of advantages

offered by a high-speed internet connection.

By enhancing the technological outreach and

skills training at the existing Apalachee

Ridge Technology Center in combination with

targeting at-risk student populations

throughout Leon County this project will

expose and train a group of underserved

individuals and thereby increase the

adoption and utilization of broadband

technology.

10. The BTOP grant application identified three "partners"

that would contribute products or services to the proposed

project: Florida State University, the Go Beyond Foundation,

and ADE. Throughout the application, ADE and its "Learning

Without Walls" initiative are promoted as a central and

essential part of the proposed project.

11. The BTOP grant application included a letter to

Ms. Blanchard from Julius H. Hollis, ADE's Chairman and CEO,

expressing support for the application and confirming ADE's

involvement in the project, including "an in-kind contribution

of computers to support your application." If the grant were

awarded and implemented as proposed, ADE would have been

obligated to provide $36,109 worth of software and $40,000 worth

of computer equipment. Mr. Hollis was the person who hired

Respondent to work for ADE.

12. On or about August 19, 2010, the NTIA awarded the

grant to the City. The award documents stated that the grant

required compliance with various federal regulations including

15 C.F.R. § 24.31(d), which provides, in relevant part:

(d) Programmatic changes . Grantees or

subgrantees must obtain the prior approval

of the awarding agency whenever any of the

following actions is anticipated:

* * *

(3) Changes in key persons in cases where

specified in an application or a grant

award....

13. On September 15, 2010, an agenda item was placed

before the City Commission regarding this matter. The

"recommended action" was to "[a]pprove the City's participation

in the BTOP grant and allow the City Manager to execute the

agreement with the [NTIA]." Respondent passed the presiding

officer's gavel to Commissioner Lightsey so that he could make

the motion that the Commission adopt the recommended action. In

his comments, Respondent mentioned that he was familiar with ADE

because he "had helped them out a little bit" and that ADE was a

"solid non-profit organization." Respondent voted in favor of

the motion, which passed unanimously.

14. James English, the City Attorney, 2 / testified that

there is nothing in the City's charter or ordinances that

required this matter to go before the City Commission for a

vote. Other, smaller grants do not come before the Commission

for a vote but are handled administratively by the City Manager.

Mr. English stated that this item was put to a vote because it

was a "good-news story and something you'd want to have on the

agenda. It's a public meeting and it's on live television and

we celebrate . . . [It was] totally non-controversial, a happy

event, a unanimous vote." Mr. English stated that, while it is

"customary" to bring such items to the Commission, it was not

necessary to do so. He did concede that had the Commission

voted not to accept the grant, the City Manager could not have

moved forward in the contracting process.

15. The September 15, 2010, Commission vote did not

establish a contract between the City and any of its partners in

the BTOP grant application. The purpose of the vote was simply

to accept the grant from the NTIA. Before they could enter a

contract with the City, the grant partners still had to

demonstrate that they were in compliance with federal

regulations and that they were financially able to fulfill their

obligations as outlined in the grant application.

16. Ms. Blanchard testified that the City Commissioners

were usually thorough in reviewing the details of proposed

contracts. She testified that as of the September 15, 2010,

vote no contractual details had been provided to the

Commissioners because none had yet been outlined by staff. In

her briefing of Commissioner Andrew Gillum prior to the vote,

Ms. Blanchard confined herself to a general description of the

roles to be played by each partner in the grant application. 3 /

17. Three of the Commissioners at the time of the

September 15, 2010, vote, Mark Mustian, Gil Ziffer, and Debbie

Lightsey, testified that they had made no commitments or

decisions regarding contracts with any of the partners as of the

time of their vote. Respondent proffered that Commissioner

Gillum would have given the same testimony. The proffer was

accepted without objection from the Advocate. Mr. English

testified that none of Commissioners had indicated to him that

they had decided to vote for any particular partner named in the

grant application.

18. Mr. English testified that about one month after the

September 15 vote, he attended a meeting of city staff to

commence contract negotiations with the partners named in the

grant application. This was the first face-to-face meeting

between City representatives and those from ADE's Atlanta home

office. At this meeting, the ADE representatives advised

Mr. English that ADE could not be the contracting party because

it was a 501(c)(4) corporation engaged in a lobbying activities

that rendered it ineligible to accept federal funds.

19. Someone at the meeting mentioned Partners for Digital

Equality ("PDE"), a separate 501(c)(3) corporation that was

closely affiliated with ADE. As a 501(c)(3), PDE would be

eligible to participate in the grant. Mr. English observed that

all of the ADE people at the table during the meeting also

appeared to be involved with PDE, and verified that PDE could

step into the role envisioned for ADE in the BTOP grant

application. Mr. English concluded that the City would be

dealing with more or less the same people under a different

corporate umbrella. The decision was made to replace ADE with

PDE for purposes of the City's negotiating contracts with its

partners for the BTOP grant.

20. An item was placed on the agenda for the December 8,

2010, City Commission meeting recommending that the Commission

"[p]rovide authority for the City Manager to negotiate and

execute three year contracts with Go Beyond Foundation not to

exceed $600,187, and [PDE] not to exceed $761,609, in accordance

the provisions [sic] of the grant."

21. Mr. English testified that shortly before the

December 8, 2010, Commission meeting, Respondent advised him

that he was affiliated with ADE. Mr. English described the

conversation as follows:

He approached me, as you commonly do on

conflict questions, and said, “Look, Jim, I

am on the Board of Advisors or Board-- on

the Board of ADE. 4 / This vote is coming up

again, the December vote. Is that a

problem, is that a conflict? It's a not-for

profit.” And I advised him at that point I

would say, yes, it's a conflict, don't vote.

22. Mr. English understood that the vote would be to

negotiate with PDE rather than ADE, but this understanding did

not change his advice to Respondent that he should abstain from

voting on the matter.

23. Following Mr. English's advice, Respondent filed a

Form 8B, Memorandum of Voting Conflict for County, Municipal,

and Other Local Public Officers ("Memorandum of Conflict"),

disclosing that the agenda item providing the City Manager

authority to negotiate and execute contracts with the BTOP grant

partners "inured to the special gain or loss of The Alliance for

Digital Equality (ADE), by whom I am retained as a member of its

Board of Directors." 5 / Respondent also noted that "ADE is a

501C(3) non-profit [sic] entity and provides a stipend to its

board members."

24. It was a few weeks or a month after his conflict

discussion with Respondent that Mr. English learned Respondent

was being paid by ADE. Ms. Blanchard testified that she knew at

the time of the application that Respondent served on a board of

ADE, but she did not know that it was a paid position.

25. At its December 8, 2010, meeting, the City Commission

voted 4-0, with Respondent abstaining, to authorize the City

Manager to negotiate contracts with the BTOP grant partners.

Mr. English testified that any contracts negotiated by the City

Manager would have had to come before the City Commission for

another vote of ratification.

26. No contract was ever entered into between the City and

any of the partners. The partners were unable to demonstrate

their financial ability to meet the commitments they undertook

in the grant application. Respondent also pointed to the

publicity after ethics complaints were filed against Respondent

as having "soured" the partners on the project. The City

eventually notified the NTIA that it was waiving its right to

accept the grant.

27. In summary, Respondent knew at the time of the

September 15, 2010, vote that ADE was a named partner of the

City in the BTOP grant application, and that he was being paid

$2,000 per month by ADE to sit on its Board of Advisors.

Respondent listed ADE as a primary source of income on his

Statement of Financial Interests for the years 2007 through

2010. Respondent did not conceal his involvement with ADE, but

the record discloses no affirmative efforts on his part to

dispel what appeared to be the general impression that his work

for ADE was gratis, until his expression of concern to

Mr. English just before the December 8, 2010 vote.

28. However, the facts also indicate that at the time of

the September 15, 2010, vote there was no contractual

relationship between ADE and the City, and that at least two

more Commission votes would be required before ADE could enter a

contract and participate in the BTOP grant.

29. Of decisive significance is the fact that, as a

501(c)(4) organization engaged in lobbying activities, ADE could

not accept the federal grant money sought by the BTOP

application. 2 U.S.C. § 1611. Thus, a separately incorporated

affiliated 501(c)(3) organization, PDE, was substituted as the

entity proposed to contract with the City and to receive the

BTOP grant funds. 6 / No evidence was provided to show a

relationship between Respondent and PDE.

Facts as to DOAH Case No. 12-2509EC

30. Respondent entered into a written employment agreement

dated June 1, 2004, with the law firm Adorno & Yoss. The firm

was based in Miami, and Respondent was to open the firm's

Tallahassee office. Throughout his tenure at Adorno & Yoss,

Respondent was the sole attorney in the Tallahassee office.

31. The employment agreement provided that Respondent

would be a "contract partner" paid at the rate of $12,500 per

month. The contract made no provision for Respondent to share

in the profits of the firm. Adorno & Yoss partner George Yoss,

who was Respondent's main contact with the firm, confirmed that

Respondent was never a "partner" or "shareholder" in the sense

of having an ownership interest in the firm.

32. Respondent confirmed that he had no ownership interest

in Adorno & Yoss. He testified that the employment agreement

used the term "managing partner" because Adorno & Yoss "wanted

to make the office in Tallahassee look as though it was really

an operation that people can depend on." Respondent stated that

Adorno & Yoss exercised no control over his relationships with

the clients he represented or over the cases he handled. 7 / He

never had access to the books and records of Adorno & Yoss, and

the firm never requested access to Respondent's books. 8 / On

average, Respondent spent 20-to-25 hours per week on Adorno &

Yoss work.

33. By its terms, the employment agreement was to expire

on December 31, 2008. Mr. Yoss testified that Respondent

remained with the firm past the expiration of the written

agreement, but that in March 2009, Respondent's status was

changed to "of counsel" because his financial performance was

insufficient for the amount of salary he was receiving. The "of

counsel" arrangement based Respondent's compensation on the

amount of work he generated for the firm, rather than paying him

a fixed salary. 9 /

34. On September 22, 2004, Respondent abstained from a

Commission vote to approve the award of a guaranteed energy

savings contract to Johnson Controls, Inc. and Honeywell

International, Inc. ("Honeywell" 10 / ). In his Memorandum of

Conflict dated September 24, 2004, Respondent stated that the

measure in question "inured to the special gain or loss of

Honeywell, Inc. and Johnson Controls, Inc., by whom I am

retained."

35. Respondent testified that when this vote came up, he

was concerned that a law firm as large as Adorno & Yoss might

have some involvement with the contracting entities. He called

the Miami office for a client check. Respondent was told that

the firm did not represent Honeywell, but that it did represent

Bendix, a subsidiary of Honeywell. Respondent decided that it

would be prudent to recuse himself from the vote. Respondent

testified that he named Honeywell rather than Bendix on the

Memorandum of Conflict because Honeywell was the entity with

which the City was contracting.

36. Respondent testified that in August 2006, another

matter involving Honeywell was coming before the City

Commission. By this time, he had met Bueno Prades, an account

executive for Honeywell. Mr. Prades was involved in the sales

of energy projects to entities such as the City, and introduced

himself to Respondent in the course of pursuing an energy

performance contract with the City in 2004. Mr. Prades made

frequent sales calls on Respondent, but did not otherwise meet

or socialize with Respondent.

37. Respondent testified that in August 2006, he asked

Mr. Prades to determine whether Honeywell or any of its

subsidiaries was represented by Adorno & Yoss. Mr. Prades sent

an email to his manager Steve Borden and Honeywell government

relations manager Paul Boudreau asking them to "check into

Honeywell's involvement with Adorno & Yoss and provide your

input as to any potential conflict." Mr. Borden and

Mr. Boudreau circulated the request to Honeywell's legal and

accounting departments, which responded that there was no record

of a relationship with or payment to Adorno & Yoss as to

Honeywell or its subsidiaries. Mr. Prades relayed this

information to Respondent. Respondent testified that the matter

involving Honeywell never came to a vote in 2006 and that was

the end of the matter for the time being.

38. In an "urgent" email to Mr. Boudreau and Honeywell in-

house attorney Jennifer Eastman, dated March 1, 2007, at 4:08

p.m., Mr. Prades wrote as follows, in relevant part:

Need your prompt help . . . We're getting

ready to go to the Commission with this

project, but the Mayor recently indicated

that he may have a potential conflict and

may have to recuse himself on issues dealing

with Honeywell. He also mentioned this last

August, and Paul Boudreau conducted a search

(see e-mail trail below) but found no record

of Honeywell doing business with the Mayor's

firm (Adorno & Yoss). We have contacted the

Mayor's office to get some clarification

regarding his concern, but would like your

assistance in researching this matter from

Honeywell's side....

Note that Mayor Marks is also on the Board

of Directors of Fringe Benefits Management,

a private financial services company

headquartered in Tallahassee....

1. Does Honeywell International have any

business relationship (either as a client or

vendor) with Adorno & Yoss or Fringe

Benefits Management?

2. If so, to what extent are we connected--

with which A&Y office do we have a contract?

Which Hwl business unit? Is the contract

active?

39. Also on March 1, 2007, at 11:35 p.m., Mr. Prades sent

an email to: Kevin Madden, vice president of global sales; Vince

Rydzewski, south region vice president and general manager; John

Carter, national energy manager; Kent Anson, vice president in

charge of Honeywell's utility business; Steve Smith, sales

leader in the utility business; Kevin McDonough, a manager of

the utility business; Kevin Colores, south region sales manager;

Mr. Borden; and Frank Tsamoutales, an outside consultant. The

email, with the subject line, "City of Tallahassee-- New issue

may change strategy," stated as follows:

The Mayor indicated he may have to recuse

himself on a vote concerning Honeywell. In

August and again yesterday, 11 / a check of the

Honeywell supply management system yielded

no record of any business with the Mayor's

law firm (Adorno & Yoss) or the firm he

serves on the Board of Directors (Fringe

Benefits Mgmt). Steve Borden has contacted

[Respondent's aide] Alan Williams to

determine why the Mayor feels there may be a

conflict, and will find out by Monday [March

5].

40. On March 13, 2007, Mr. Borden sent an email to Messrs.

Rydzewski, Tsamoultes and Prades, indicating that he had

received a call from Respondent's office requesting information

regarding the business relationship between Bendix and

Honeywell. Mr. Borden also wrote that Ms. Eastman had informed

Mr. Tsamoultes "that we have no record that the mayor's firm has

any relationship with Bendix or Honeywell. I further understand

that a plan is in place to deal with this issue directly with

the mayor."

41. Mr. Prades testified that his only direct meeting with

Respondent concerning the Adorno & Yoss issue was in August

2006. In March 2007, he met with Respondent's aide, Alan

Williams, to inform him that Honeywell had been unable to find

any indication that it or any of its subsidiaries had a business

relationship with Adorno & Yoss. Mr. Williams confirmed the

substance of this conversation, and the fact that it occurred

prior to the March 28, 2007, vote involving Honeywell.

Mr. Williams passed on Mr. Prades' findings to Respondent.

42. The City Commission's March 28, 2007, agenda included

an item related to smart metering. One of the options before

the Commission would be a staff recommendation to authorize City

staff to negotiate a contract with Honeywell to provide contract

management services for the full deployment of a smart metering

network and smart thermostats for the City's utility system.

This was the matter that was the subject of Mr. Prades' urgent

inquiries. He believed it essential that Respondent vote on the

motion.

43. With the agenda item pending, Respondent sent

Mr. English a short letter from Honeywell (no longer available

and therefore not part of the record of this proceeding) stating

that Honeywell "does not have any record of a conflict of

interest with Adorno & Yoss." In an email sent on the afternoon

of March 21, 2007, Respondent asked Mr. English whether he had

seen the Honeywell letter and further requested, "Please

advise." About a half-hour later, Mr. English replied:

Yes-- and I did verify from the public

records the sale by Honeywell of Bendix

several years ago. Otherwise the letter

isn't helpful. The issue isn't "conflict of

interest with Adorno & Yoss" but

representation by Adorno & Yoss. What you

will need to do is the standard check by

having your folks at Adorno & Yoss run the

client check for Honeywell International and

its wholly owned subsidiaries. I have the

list per Honeywell's latest 10k filing and

will forward it this afternoon.

44. A few minutes later, Mr. English sent a follow-up

email to Respondent:

Sorry -- I should have added a time period

for the check. Current plus within the last

two years should be adequate. Let me know

if you need any assistance or have any

questions.

45. On March 28, 2007, Respondent voted in favor of the

motion to authorize the City's staff to negotiate a contract

with Honeywell to provide contract management services for the

full deployment of a smart metering network and smart

thermostats for the City's utility system. The vote was 3-1 in

favor of the motion, with then-Commissioner Allan Katz

abstaining because his law firm represented Honeywell.

46. The minutes of the March 28, 2007, Commission meeting

provide as follows:

Mayor Marks stated for the record that there

had been some question at one point as to

whether he had a conflict of interest on

this issue; however, after extensive

investigation and discussion with the City

Attorney, a determination had been made that

there was no conflict.

47. Mr. English wrote a memorandum to Respondent, dated

June 20, 2007, and titled, "Honeywell Conflict of Interest

Check." The memorandum provided as follows:

This will serve to confirm that several

weeks prior to the March 28, 2007, vote on

pursuing the City's automatic metering

infrastructure project, you asked that I

research the issue as [to] whether or not

you had any conflict of interest in voting

on that matter. In pursuance of that

effort, I secured from the U.S. Securities

and Exchange Commission website a list of

all materially owned Honeywell subsidiaries

and pursuant to receipt of that data, you

had your law firm perform a client check to

ensure that the firm did not represent, nor

had it in recent years represented, any of

the entities on that list.

Additionally, prior to that time, you had

advised me that in the past your law firm

had represented Bendix. Prior to the

specific conflict check research, I had

inquired of that matter, checked the public

information, and confirmed that Bendix

previously had been a subsidiary of

Honeywell but had been sold by Honeywell to

a German company a number of years ago.

In summary, I advised you at the time, and I

can still confirm, that you have no

prohibited conflict of interest with regard

to any votes with regard to Honeywell. As

always, I appreciate your apprising me of

any potential conflicts that may arise from

law firm representation.

48. Mr. English testified that Respondent had "asked me to

write him a memo confirming our previous discussions."

Mr. English testified that his advice as to the Honeywell

relationship was always based on the information that Respondent

had provided. The only independent research performed by

Mr. English was to confirm that Honeywell had sold Bendix and to

find a list of Honeywell's subsidiaries in its 10-K filings with

the S.E.C. Mr. English testified that the statement in his memo

regarding the client check by Adorno & Yoss was "based on the

Mayor advising me prior to the meeting that he had checked and

that his law firm did not represent Honeywell."

49. In fact, Respondent did not have Adorno & Yoss run a

client check on Honeywell and its subsidiaries prior to the

March 28, 2007 vote, despite the fact that his usual practice

was to check with the law firm regarding conflicts. He relied

solely on the information provided by Honeywell through

Mr. Prades, as described above. At the hearing, Respondent

explained his rationale as follows:

Well, Honeywell had a lot of subsidiaries,

quite a few subsidiaries that I was-- Jim

English told me about and others, a lot of

subsidiaries. So I thought it would be a

lot more efficient and effective if I asked

Honeywell if there are any conflicts where

Adorno & Yoss was representing not only

Honeywell, but any of the myriad of

subsidiaries Honeywell had.

50. Respondent testified that Honeywell was "really a

reputable company" and that he had no reason to believe the

company would "try and do anything untoward regarding this

contract or any other contract." The testimony of Mr. Prades

and the Honeywell emails introduced at the hearing support

Respondent's belief that Honeywell made a good faith effort to

discover whether it had a relationship with Adorno & Yoss.

51. Despite the failure of Mr. Prades' inquiries to

discover it, Honeywell was a client of Adorno & Yoss at the time

of the March 28, 2007 vote. Anthony Upshaw, the Adorno & Yoss

partner who brought Honeywell to the firm in 2003 or 2004,

estimated that Honeywell was one of the firm's top fifteen

clients. (Mr. Upshaw took Honeywell with him when he left

Adorno & Yoss in late 2010.) Bob Kulpa, Adorno & Yoss's

comptroller, testified that Honeywell was one of the firm's top

ten clients.

52. Julie Feigeles was one of the three Adorno & Yoss

lawyers who worked on Honeywell matters. Ms. Feigeles testified

that the firm's representation of Honeywell was limited to

asbestos litigation related to Honeywell's ownership of Bendix,

and that the work was handled exclusively in the Miami office.

She recalled that she worked with Honeywell lawyers in the

"Bendix litigation group" and that there were many defendants

and many law firms involved in the litigation.

53. Mr. Yoss, Mr. Kulpa, Mr. Upshaw, and Ms. Feigeles each

testified that he or she never spoke with Respondent about

Honeywell during the time frame relevant to this proceeding.

54. Respondent testified that his contacts with Adorno &

Yoss's Miami office were minimal. As noted above, Respondent's

role was to provide Adorno & Yoss a presence in Tallahassee, but

he mostly serviced his own clients and kept his own accounts.

He estimated that he spoke to someone from Adorno & Yoss,

usually Mr. Yoss, about twice per month. Respondent visited the

firm's Miami office a few times. He recalled having spent a

total of about 20 hours in the Miami office.

55. The question naturally arises: why did Mr. Prades'

efforts within Honeywell reveal no relationship with Adorno &

Yoss, when everyone from Adorno & Yoss who testified stated that

Honeywell was a major client of the firm? Mr. Prades testified

that he learned later that Adorno & Yoss had been hired not by

Honeywell but by the insurance company that was defending the

asbestos litigation on Honeywell's behalf.

56. This attenuation of the relationship apparently meant

that Honeywell had no internal record of dealings with Adorno &

Yoss, despite the fact that Ms. Feigeles recalled working with

in-house Honeywell lawyers. Honeywell's accounts showed no

payments to Adorno & Yoss because the payments were being made

through the insurance company. From the perspective of the

Adorno & Yoss lawyers, Honeywell was nonetheless their client.

57. At the hearing, Mr. English was queried about his

March 21, 2007, email advising Respondent to have Adorno & Yoss

"run the client check" for Honeywell and his June 20, 2007, memo

stating that Respondent had his law firm perform a client check.

Mr. English did not testify that Respondent directly told him

that he had run the client check with Adorno & Yoss. Rather,

Respondent told Mr. English prior to the March 28, 2007

Commission meeting "that he had checked and that his law firm

did not represent Honeywell."

58. Mr. English assumed that Respondent ran a conflict

check through his law firm, when in fact Respondent was relying

on information obtained from Honeywell. Mr. English did not

believe it mattered so long as the information was accurate. He

knew of "no legal reason" why Respondent should check with

Adorno & Yoss as opposed to Honeywell. He stated that, although

the usual course is to check with one's law firm, "It would work

either way."

59. Mr. English noted that section 286.012, Florida

Statutes, forbids a public official from abstaining to avoid a

tough vote. The statute requires the official to vote unless

there is a possible conflict of interest, and the presence of a

conflict can constitute a "very difficult" judgment call. He

testified that Respondent has "always been very, very

conscientious . . . to the point of being a bit paranoid" about

avoiding voting conflicts.

60. At the time of the March 28, 2007, vote and the later

votes at issue in this proceeding, Respondent did not know that

Adorno & Yoss represented Honeywell. Honeywell's good faith in

attempting to ascertain its relationship with Adorno & Yoss is

not in doubt, and in most cases would have been sufficient to

reveal the true state of affairs. With benefit of hindsight,

Respondent may be criticized for failing to complete the circle

of inquiry by asking Adorno & Yoss to perform a client check, a

check that would have immediately informed Respondent of the

representation. However, it cannot be found that Respondent's

reliance on Honeywell was so unreasonable as to constitute an

effort on his part to shield himself from knowledge of Adorno &

Yoss's representation of the company. 12 /

CONCLUSIONS OF LAW

61. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

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

62. The Commission is authorized to conduct investigations

and make public reports on complaints concerning violations of

Part III, chapter 112, Florida Statutes, the Code of Ethics for

Public Officers and Employees (Code of Ethics). § 112.322, Fla.

Stat.; Fla. Admin. Code R. 34-5.0015.

63. The Commission, through its Advocate, is asserting the

affirmative regarding Respondent's purported violations of

section 112.3143(3)(a). The party having the affirmative of the

issues in a proceeding bears the burden of proof. Dep’t of

Transp. v. J.W.C. Co. Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981);

and Balino v. Dep’t of HRS , 348 So. 2d 349 (Fla. 1st DCA 1977).

64. In this case, the elements of the alleged violation

must be established by clear and convincing evidence. Siplin v.

Comm’n on Ethics , 59 So. 3d 150 (Fla. 5th DCA 2011); Latham v.

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

65. In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

1989), the Court defined clear and convincing evidence as

follows:

[C]lear 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

evidence must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact the firm belief of

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983).

66. Judge Sharp, in her dissenting opinion in Walker v.

Dep’t of Bus. & Prof’l Reg. , 705 So. 2d 652, 655 (Fla. 5th DCA

1998) (Sharp, J., dissenting), reviewed recent pronouncements on

clear and convincing evidence:

Clear and convincing evidence requires more

proof than preponderance of evidence, but

less than beyond a reasonable doubt. In re

Inquiry Concerning a Judge re Graziano , 696

So. 2d 744 (Fla. 1997). It is an

intermediate level of proof that entails

both qualitative and quantative [sic]

elements. In re Adoption of Baby E.A.W. ,

658 So. 2d 961, 967 (Fla. 1995), cert.

denied , 516 U.S. 1051, 116 S. Ct. 719, 133

L.Ed.2d 672 (1996). The sum total of

evidence must be sufficient to convince the

trier of fact without any hesitancy. Id.

It must produce in the mind of the fact

finder a firm belief or conviction as to the

truth of the allegations sought to be

established. Inquiry Concerning Davey , 645

So. 2d 398, 404 (Fla. 1994).

67. It is alleged that Respondent violated section

112.3143(3), by voting to approve the City's participation in

the BTOP federal grant in partnership with ADE, a business

entity for which Respondent served in a compensated position.

68. It is also alleged that Respondent violated section

112.3143(3) by voting on four separate occasions on a matter

that he knew inured to the special private gain or loss of

Honeywell, a principal by which Respondent's law firm had been

retained.

69. Section 112.3143(3)(a) provides as follows:

No county, municipal, or other local public

officer shall vote in an official capacity

upon any measure which would inure to his or

her special private gain or loss; which he

or she knows would inure to the special

private gain or loss of any principal by

whom he or she is retained or to the parent

organization or subsidiary of a corporate

principal by which he or she is retained,

other than an agency as defined in s

112.312(2) ; or which he or she knows would

inure to the special private gain or loss of

a relative or business associate of the

public officer. Such public officer shall,

prior to the vote being taken, publicly

state to the assembly the nature of the

officer’s interest in the matter from which

he or she is abstaining from voting and,

within 15 days after the vote occurs,

disclose the nature of his or her interest

as a public record in a memorandum filed

with the person responsible for recording

the minutes of the meeting, who shall

incorporate the memorandum in the minutes.

(Emphasis added).

70. Respondent does not contest the first element of proof

under section 112.3143(3)(a), i.e., that at the time of the

votes in question he was a "county, municipal, or other local

public officer." As Mayor of the City, Respondent was and is

subject to the provisions of the Code of Ethics.

71. The standard for construing section 112.3143(3) was

ably set forth by Administrative Law Judge Stuart M. Lerner in

In re: Joseph Russo , Case No. 08-1567EC (DOAH Mar. 4, 2009; COE

Final Order 09-072 Apr. 29, 2009), adopted as the rule in the

instant case:

61. Inasmuch as it is a penal statute,

section 112.3143(3), Florida Statutes, must

be strictly construed and not extended

beyond its intended reach. If there are any

doubts concerning its applicability, these

doubts must be resolved in favor of

limiting, rather than extending, its scope

of operation. See Florida Industrial

Commission v. Manpower, Inc. of Miami , 91

So. 2d 197, 199 (Fla. 1956); Beckett v.

Department of Financial Services , 982 So. 2d

94, 100 (Fla. 1st DCA 2008); and Latham , 694

So. 2d at 86.

62. It is telling that the Legislature, in

section 112.3143(3), Florida Statutes, used

the language " would inure," not " might

inure" or " is likely to inure."... That

there ultimately may have been a "special

private gain or loss" is not determinative.

A local public officer's action in voting on

a particular measure must be judged, not

based on hindsight, but on the circumstances

that existed "at the time of the vote" in

question. If, in light of these

circumstances, one could have only

speculated "at the time of the vote" as to

whether or not a prohibited "special private

gain or loss" would result from the measure

voted on, the officer cannot be found guilty

of having violated the statute by voting on

the measure, even if it turned out that the

vote did cause "the officer, his principal

(employer), or . . . other persons or

entities standing in an enumerated

relationship to the officer" to realize a

"special private gain or loss."

63. It is also of significance in

determining the reach of Section

112.3143(3), Florida Statutes, as it applies

in the instant case, that the Legislature

provided that, where the measure in question

"would inure to the special private gain or

loss [of the officer's] principal,"

liability attaches only if the officer

" knows " that the measure would have this

consequence. Importantly, the Legislature

did not include the words " or should know "

in the statute. Its failure to have added

this language (as it has done elsewhere in

the Code and in Florida Statutes) reflects

its intent that the officer must have, at

the time of the vote, actual knowledge of

the "special private gain or loss" that

"would inure" to principal for there to be a

violation of the statute. See Leisure

Resorts, Inc. v. Frank J. Rooney, Inc. , 654

So. 2d 911, 914 (Fla. 1995) ("When the

legislature has used a term, as it has here,

in one section of the statute but omits it

in another section of the same statute, we

will not imply it where it has been

excluded.")... [ 13 / ]

64. To hold that section 112.3143(3),

Florida Statutes, extends to situations

where the officer does not have such actual

knowledge would require the Commission to

add language to the statute that the

Legislature, by all appearances,

intentionally omitted. This the Commission

cannot do, particularly inasmuch as section

112.3143(3) is a penal statute that must be

strictly construed in favor of the

accused. . . [Endnote omitted.]

DOAH Case No. 12-2508EC

72. On September 15, 2010, Respondent voted in favor of a

motion to approve the City's participation in the BTOP grant and

allow the City Manager to execute the agreement with the NTIA.

Respondent knew at the time of the vote that ADE was a named

partner of the City in the grant application. Respondent was a

member of the Board of Advisors of ADE, for which he was paid

$2,000 per month.

73. On December 8, 2010, the Commission voted on a motion

to authorize the City Manager to negotiate and execute three-

year contracts with the BTOP grant partners, including PDE, an

affiliated corporation that was substituted for ADE when ADE

revealed to the City that it was ineligible to participate in

the grant. After consulting with the City Attorney, Respondent

abstained from voting on this motion, despite the substitution

of PDE.

74. The Advocate contends that this situation presents a

straightforward violation of section 112.3143(3)(a). The City

was awarded federal grant money based on an application that

included ADE as a partner. The City could not remove ADE as a

partner without the prior approval of NTIA because of the

strictures of 15 C.F.R. § 24.31(d). By the terms of the grant,

ADE was to receive a benefit. Therefore, Respondent was

obligated to abstain from voting on September 15, 2010, and to

file a Memorandum of Conflict, pursuant to the terms of the

governing statute.

75. Respondent asserts that the matter is more

complicated. Because the September 15, 2010, vote did not

itself provide a benefit to ADE, and because any future benefit

that ADE might receive as a result of that vote was remote and

speculative, Respondent was not required to abstain from the

vote.

76. Respondent points to numerous advisory opinions in

which the Commission found no special private gain where there

was uncertainty at the time of the vote as to whether there

would be any gain or loss to the officer or a principal by whom

he or she was retained. This "remote and speculative" test has

been described by the Commission as follows:

In past decisions, we have found that the

statute does not apply in situations where,

at the time of the vote, there is

uncertainty whether there will be any gain

or loss to the officer, his principal

(employer), or to other persons or entities

standing in an enumerated relationship to

the officer, and if so, what the nature and

magnitude of the gain or loss might be.

Thus, we frequently have found no special

private gain or loss to exist when the

circumstances were such that any gain or

loss to the officer, or to an enumerated

person or entity, was too remote or

speculative. See, for example, CEO 06-

21 (town commission member voting on land

use matters where member's employer has

extensive contractual relationships with

land use applicant), CEO 05-15 (city

commissioner whose client is potential

developer of affordable housing within city

voting on amendments to affordable housing

ordinance), CEO 05-2 (village

workforce/affordable housing committee

member voting on mobile home park measures),

and CEO 88-27, Question 3, (city

commissioner voting on rezoning of property

sold contingent on rezoning where

commissioner probably will be building

contractor on the property).

CEO 07-7 (Fla. Comm'n on Ethics Mar. 7, 2007). See also CEO 06-

8 (Fla. Comm'n on Ethics June 14, 2006) and Commission advisory

opinions cited therein.

77. Respondent notes that the Commission has on several

occasions applied this test to conclude that abstention was not

necessary where the officer or principal was required to clear a

number of hurdles subsequent to the vote in question before any

benefit could be received. See CEO 12-01 (Fla. Comm'n on Ethics

Feb. 8, 2012) (city commissioners who own businesses in an area

frequented by cruise ship passengers were not required to

abstain from voting on a channel-widening feasibility study;

channel widening would allow larger cruise ships into the port,

but so many subsequent events and approvals would be required

that any benefit to the commissioners was remote and

speculative); see also CEO 06-21 (Fla. Comm'n on Ethics Oct. 25,

2006) and CEO 05-15 (Fla. Comm'n on Ethics Sept. 7, 2005), cited

in the inset quotation at Conclusion of Law 76 above.

78. Respondent points out that the September 15, 2010,

vote did not itself provide any benefit to ADE or any other

grant partner. The agenda item did nothing more than approve

the City's participation in the grant and allow the City Manager

to execute the agreement with the NTIA. Mr. English stated that

the vote was not even necessary and was undertaken simply to

publicize the good news about the federal money coming to

Tallahassee. At the time of the vote there was no contractual

relationship between ADE and the City. The evidence established

that at the time of the vote, no contractual terms had been

reached, no City Commissioner had made a commitment regarding a

contract with any of the grant partners, and at least two more

Commission votes would be required before ADE could enter a

contract and participate in the BTOP grant.

79. Respondent also points out that the partners would be

required to demonstrate their financial ability to fulfill their

obligations under the BTOP project. ADE was required to provide

$36,109 worth of software and $40,000 worth of computer

equipment, a requirement it was ultimately unable to fulfill.

Respondent argues that the obstacles to any given partner

ultimately receiving a benefit from the vote on September 15,

2010, were real and substantial.

80. As to the Advocate's argument that the City could not

drop ADE from the grant without NTIA's permission pursuant to 15

C.F.R. § 24.31(d), Respondent argues that the Advocate provided

no evidence that the grant award or any other federal or state

law mandated that all partners identified in the application

remain in the grant project to its completion, and thus has

provided no reason why the federal grant administrator would

have declined to replace ADE with PDE.

81. This point raises the most telling aspect of the

"remote and speculative" analysis: ADE was a 501(c)(4)

organization engaged in lobbying activities and as such was

ineligible to accept the federal grant money sought by the BTOP

application. 2 U.S.C. § 1611. Had ADE not self-reported its

ineligibility to the City at the initial contract negotiation,

ADE's status would presumably have become apparent at some point

short of its actually accepting the grant money. Whether or not

the NTIA ultimately accepted PDE as the replacement partner, the

grant administrator would have been forced to accept the

withdrawal of ADE from the grant. Any benefit to ADE from the

September 15, 2010, vote was not merely remote and speculative

but illegal under Federal law. No special private gain could

ever have inured to the benefit of ADE by virtue of Respondent's

vote.

82. Prior to the December 8, 2010, vote from which

Respondent abstained, PDE, a separately incorporated affiliated

501(c)(3) organization, was substituted as the entity proposed

to contract with the City under the BTOP grant. No evidence was

presented to show a business relationship between Respondent and

PDE. No evidence was presented that the status of ADE and PDE

as interrelated but separate "business entities" as defined in

section 112.312(5), should be disregarded for purposes of

treating PDE as Respondent's de facto principal.

83. A closer question as to the "remote and speculative"

test would have been presented had ADE been eligible to

participate in the BTOP grant. Unlike the votes in some of the

cases cited by Respondent, the September 15, 2010, vote was not

a preliminary vote on a feasibility study or a vote on a general

ordinance that might or might not affect the member or his

principal in the future. This vote acknowledged that the

biggest hurdle in the process, the obtaining of a grant in

excess of $1 million from the Federal government, had been

accomplished after a prior failure. The vote was staged to

celebrate that fact. Respondent's principal was a named partner

in the grant application, and Respondent voted on the matter in

full knowledge that his principal stood to gain a substantial

sum of money from its partnership with the City. At the time of

the vote, ADE had represented that it would be able to meet the

financial commitments undertaken in the grant application. Only

well after the vote did Respondent reveal to the City Attorney

his relationship with ADE, and even then he did not disclose

that he was paid by ADE for his services. Two subsequent votes

would be necessary to finally secure the funding for ADE, but

these votes would in all likelihood follow the recommendation of

the City Manager subsequent to contract negotiations with the

grant partners. It is fortuitous for Respondent's case that ADE

was not eligible under Federal law to participate in the BTOP

grant.

84. It is concluded that the Advocate failed to

demonstrate by clear and convincing evidence that Respondent's

vote on September 15, 2010, to approve the City's participation

in the BTOP federal grant in partnership with ADE, a business

entity for which Respondent served in a compensated position,

violated section 112.3143(3), Florida Statutes.

DOAH Case No. 12-2509EC

85. It is alleged that Respondent violated section

112.3143(3) by voting on four separate occasions on a matter

that he knew inured to the special private gain or loss of

Honeywell, a principal by which Respondent's law firm had been

retained. All the evidence produced at the hearing related to

Respondent's vote on March 28, 2007, but the parties agree that

the same legal analysis would apply as well to the votes made on

September 19, 2007, June 13, 2007, and June 18, 2008.

86. The evidence presented at the hearing established that

prior to the March 28, 2007, vote, Respondent suspected that

Honeywell might be a client of his law firm, Adorno & Yoss. He

had abstained from a 2004 vote on a Honeywell matter because of

Adorno & Yoss's relationship to Bendix, a Honeywell subsidiary.

When another Honeywell matter was pending in August 2006,

Respondent sought the assistance of Mr. Prades, a Honeywell

account executive working to secure business with the City.

Respondent asked Mr. Prades to determine whether Honeywell or any

of its subsidiaries was represented by Adorno & Yoss. After

investigating, Mr. Prades reported to Respondent that he could

find no record that Honeywell had a relationship with or had paid

Adorno & Yoss. The August 2006 matter never came to a vote.

87. Then, in early March 2007, Mr. Prades sent an "urgent"

in-house email that again sought any information regarding any

business relationship between Honeywell and Adorno & Yoss. This

inquiry was triggered by Respondent's statement that he might

abstain from the vote to negotiate a contract with Honeywell to

manage the City's smart metering project unless he could confirm

that his law firm did not represent Honeywell. After extensive

inquiries within Honeywell, Mr. Prades reported to Respondent's

aide that he had been unable to find any indication that

Honeywell or any of its subsidiaries had a business relationship

with Adorno & Yoss.

88. The Honeywell smart metering item was placed on the

agenda for the Commission's March 28, 2007, meeting. One week

before the meeting, Respondent asked Mr. English to advise him on

how to proceed. Mr. English advised Respondent to run a client

check with Adorno & Yoss on Honeywell and its subsidiaries.

Mr. English provided Respondent with a current list of

Honeywell's subsidiaries.

89. Respondent did not run a client check with Adorno &

Yoss, choosing instead to rely on the information provided by

Honeywell. In most instances, the Honeywell inquiry would have

been sufficient to establish the lack of a relationship between

the company and Adorno & Yoss. However, because of an apparent

quirk in Honeywell's accounting system, Honeywell's internal

search failed to reveal the true state of affairs. Honeywell was

in fact a substantial client of Adorno & Yoss.

90. Respondent explained that he believed that Honeywell's

"myriad of subsidiaries" meant that it would be easier for

Honeywell to ascertain whether any of its companies were

represented by Adorno & Yoss than vice versa. His experience

gave him no reason to believe that Mr. Prades or Honeywell would

be less than honest in performing the investigation. The

evidence presented at the hearing confirmed that Honeywell made a

conscientious, good faith effort to determine its relationship

with Adorno & Yoss. Respondent's reliance on Honeywell was, in

hindsight, mistaken but not unreasonable at the time and under

all the circumstances. There was no indication that Respondent

was attempting to shield himself from knowledge of the true state

of affairs.

91. At the time of the March 28, 2007, vote and the later

votes at issue in DOAH Case No. 12-2509EC, Respondent did not

know that Adorno & Yoss represented Honeywell. 14 /

92. It is concluded that the Advocate failed to

demonstrate by clear and convincing evidence that Respondent

violated section 112.3143(3) by voting on four separate

occasions on a matter that he knew inured to the special private

gain or loss of Honeywell, a principal by which Respondent's law

firm had been retained.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Commission on Ethics issue a public

report finding:

1. That the evidence presented at the public hearing in

this case was insufficient to establish clearly and convincingly

that Respondent's vote on September 15, 2010, inured to the

special private gain or loss of the Alliance for Digital

Equality, a principal by which Respondent was retained, in

violation of section 112.3143(3)(a); and

2. That the evidence presented at the public hearing in

this case was insufficient to establish clearly and convincingly

that Respondent cast votes on March 28, 2007, September 19,

2007, June 13, 2007, and June 18, 2008, in connection with

matters that inured to the special private gain or loss of

Honeywell, a principal by which Respondent was retained, in

violation of section 112.3143(3)(a).

DONE AND ENTERED this 27th day of November, 2012, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of November, 2012.

ENDNOTES

1/ Unless otherwise indicated, references to Florida Statutes

are to the 2012 edition. Section 112.3143 has been unchanged

since 1999.

2/ Mr. English has been the City Attorney since 1983, meaning

that he has served throughout Respondent's tenure as Mayor.

3/ Ms. Blanchard did not recall meeting with any other

Commissioners prior to the vote.

4/ Mr. English could not recall whether Respondent stated he was

on the Board of Advisors or the Board of Directors. For

Mr. English's purposes, the crucial datum was that Respondent

was on a board of ADE.

5/ There was no dispute that Respondent was actually a member of

ADE's Board of Advisors, not its Board of Directors.

6/ The Advocate argues, and Respondent does not dispute, that

15 C.F.R. § 24.31(d)(3), set out at Finding of Fact 12 supra,

would have required the City to seek approval from the NTIA

before PDE could be substituted for ADE as a grant participant.

7/ Respondent's testimony is credited insofar as it describes

the firm's actual practice. However, it is noted that

Respondent's contract required Managing Shareholder approval of

"any new client and any new matter which you may send to the

Firm." To avoid conflicts, Respondent was required to "promptly

disclose by email or in writing to the Managing Shareholder any

client representation matter in which you will be engaged . . ."

The contract allowed the firm to request Respondent to provide a

list of his "Personal Activities," defined as his duties as

Mayor of the City and any charitable and professional activities

outside his work for the firm. The contract also provided that

Respondent's "Personal Activities" should not "materially

interfere with the services required to be rendered" to Adorno &

Yoss.

8/ Again, whatever Adorno & Yoss's practice, Respondent's

contract appears to give the firm the right to inspect his

billings and accounts receivable.

9/ Bob Kulpa, the comptroller of Adorno & Yoss, testified that

he never considered Respondent to be an employee of the firm.

Mr. Kulpa considered Respondent to occupy an "of counsel"

relationship with Adorno & Yoss from the time of his hiring in

2004. Mr. Kulpa testified that he considered Respondent "a

contract lawyer, a 1099 lawyer, as opposed to a W-2 lawyer."

Mr. Kulpa's recollection of the manner in which Respondent was

paid also varied from the terms of the written contract; he

recalled that Respondent received a percentage of the fees he

generated rather than a fixed monthly salary. Mr. Kulpa

testified that he was unaware of Respondent ever being paid on a

different basis. He was also unaware that Respondent ever had a

written contract with the firm, which calls into question how

knowledgeable he was about Respondent's position with Adorno &

Yoss. Mr. Yoss' testimony is given greater credit on this

point.

10/ Most references to the company in the record of this

proceeding simply use the term "Honeywell." In context, it is

clear that these references are to the parent company, the

formal title of which is Honeywell International, Inc.

11/ Based on the time of this email, it is inferred that

"yesterday" references the March 1, 2007, inquiry instigated by

Mr. Prades' 4:08 p.m. email. Mr. Prades likely did not expect

most of his recipients to read this email until the morning of

March 2.

12/ Discussed at the hearing but not addressed in the Advocate's

proposed recommended order was the idea that Respondent could be

found to have violated section 112.3143(3) due to his "willful

blindness" to the reality of the situation. Conceding arguendo

that it may be possible to infer a public official's actual

knowledge from his efforts to avoid contact with persons whom he

knows could definitively convey that knowledge to him, such is

not the situation presented in this case. Here, it appears that

Honeywell's extensive efforts satisfied Respondent, and he

simply did not bother to make the inquiry at Adorno & Yoss.

13/ In an endnote to paragraph 63, Judge Lerner gave the example

of section 112.313(4), Florida Statutes, which provides that

"[n]o public officer, employee of an agency, or local government

attorney or his or her spouse or minor child shall, at any time,

accept any compensation, payment, or thing of value when such

public officer, employee, or local government attorney knows,

or, with the exercise of reasonable care, should know , that it

was given to influence a vote or other action in which the

officer, employee, or local government attorney was expected to

participate in his or her official capacity." (Emphasis added by

Judge Lerner.)

14/ In addition to the dispositive question of Respondent's

knowledge, Respondent argued that his relationship with Adorno &

Yoss fit the "of counsel" definition set forth by the Commission

of Ethics in CEO 09-10 (Fla. Comm'n on Ethics June 17, 2009),

CEO 03-7 (Fla. Comm'n on Ethics June 10, 2003), and CEO 99-9

(Fla. Comm'n on Ethics May 9, 2000). Respondent's written

contract with Adorno & Yoss called him both a "contract partner"

and an "employee" of the firm. The written contract and the

facts of Respondent's relationship with the firm indicate that

"contract partner" is an accurate description of his position,

but that Respondent's relationship to Adorno & Yoss could meet

the Commission's description of "of counsel."

In CEO 03-7 (Fla. Comm'n on Ethics June 10, 2003), the

Commission described the following as characteristics of the "of

counsel" relationship for purposes of section 112.3143(3):

. . . that the Council member has no

ownership interest in the law firm, that the

firm exercises no control over the Council

member's activities or the activities of his

clients, that the firm has no access to the

Council member's personal books and records,

that the Council member has no access to the

books and records of the firm, and that the

Council member does not share in the profits

of the firm.

In the instant case, Respondent had no ownership interest

in the law firm and did not share in the firm's profits.

However, Respondent's contract with Adorno & Yoss gave the firm

the right to approve new clients and new matters and to inspect

Respondent's billings and accounts receivable. Respondent was

represented to the public as the "partner" in charge of Adorno &

Yoss' Tallahassee office. He was the face of the firm in

Tallahassee. His contract gave the law firm wide scope to

supervise not only his legal work but his "Personal Activities,"

including his mayoral duties. Respondent's ties to the firm

appeared to be closer and his actions more subject to scrutiny

and supervision by the firm than the Commission has accepted in

the past as characteristic of an "of counsel" relationship.

COPIES FURNISHED

:

Diane L. Guillemette, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Barry Richard, Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Tallahassee, Florida 32301

Kaye B. Starling, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

C. Christopher Anderson, III, General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

Virlindia Doss, Executive Director

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.