16-001007EC In Re: Robert K. Robinson vs. * Status: Closed Recommended Order on Tuesday, January 31, 2017.

Summary: Petitioner violated sections 112.313(6) and 112.313(16)(c) and should pay a penalty of $5,000 per violation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: ROBERT K. ROBINSON, Case No. 16 - 1007EC

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings ( " DOAH " ), on August 25 and 26 , 2016, in

Sarasota , Florida.

APPEARANCES

For Advocate : Elizabeth A. Miller, Esquire

Office of the Attorney General

Plaza Level 01, The Capitol

Tallahassee, Florida 32399

For Respondent: Brennan Donnelly, Esquire

Mark Herron, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32 308

STATEMENT OF THE ISSUE

The nature of the controversy is set forth in the Order

Finding Probable Cause issued by the Commission on Ethics (the

" Commission " ) on September 16, 2015, which specifically alleged

that Respondent, City Attorney, code enforcem ent special

magistrate , or special or backup counsel for the City of North

Port, violated s ections 112.313(3), 112.313(6), 112.313(7)(a),

and 112.313(16), Florida Statutes:

[ B ] y providing counsel and recommendations to

the City Commission regarding the ad option of

local Ordinance 2014 - 29 requiring the

appointment of a Zoning Hearing Officer and

encouraging the City Commission to amend

Part II, Chapter 2, Article IX, of the City

Code to replace the Code Enforcement Board

with a Code Enforcement Special Mag istrate

and offering himself for consideration for

the position of Zoning Hearing Officer as

well as Code Enforcement Special Magistrate.

The issue is whether Respondent violated these provisions of the

Code of Ethics for Public Officers and Employees as alleged in

the Order Finding Probable Cause , and, if so, what penalty is

appropriate.

PRELIMINARY STATEMENT

On September 16, 2015, the Commission issued an Order

Finding Probable Cause to believe that Respondent violated

various provisions of the Code of Ethics for Public Officers and

Employees. Pursuant to s ection 112.323(3), Florida Statutes, the

Commission, on its own motion, ordered a public hearing an d

referred the complaint to DOAH on February 19, 2016.

The case was assigned to the undersigned who entered a

Notice of Hearing scheduling the final hearing for May 5 and 6,

2016. Upon motion of Respondent to continue the hearing, and

over the objection of the Commission, the final hearing was

rescheduled for July 25 and 26, 2016. The final hearing aga in

was rescheduled for August 25 and 26, 2016, upon motion of

Respondent to exclude the Commission ' s expert or, in the

alternative, to continue the hearing. The hearing commenced as

scheduled on August 25 and was completed on August 26, 2016.

At the hear ing, the Advocate presented the testimony of Mark

Moriarty, Linda Yates, Richard Harrison , and Respondent .

Advocate ' s Exhibits 1 through 6, 8 through 18, and 20 were

admitted into evidence , and included a number of videos that were

viewed at the hearing . Respondent testified on h is own behalf

and Respondent ' s Exhibits 1 through 5, 7 through 10 , 12, and 13

were admit ted into evidence .

A three - volume T ranscript of the proceedings was filed on

October 28, 2016. By agreement of the parties, proposed

recommen ded o rders were initially due on November 28, 2016.

Pursuant to an unopposed motion of Respondent, the due date for

submission of proposed recommended o rders was extended until

December 28, 2016. On that date, the parties timely filed their

Proposed Reco mmended Orders , which have been duly considered in

the preparation of this Recommended Order.

References to statutes are to Florida Statutes (20 16 ) ,

unless otherwise noted.

FINDING S OF FACT

1. The City of North Port ( " City " ) is an incorporated

municipali ty , created by the Florida L egislature in 1959, and

located in Sarasota County . Its electorate approved a revised

charter in 1988. Subsequent amendments to the C harter were

approved throughout the years, with the most recent amendment

occurring in 2014. Article XIV, concerning the City Attorney,

has never been amended.

2. The City ' s form of government is Commission - Manager.

The City Commission consists of five elected City Commissioners.

The City Commissioners elect the M ayor , who serves as presiding

officer of the City Commission, and who is elected by majority

vote of the City Commissioners . The M ayor is " responsible to see

that all laws, provisions of [the] Charter and acts of the [City]

Commission are faithfully executed; [to] sign on behalf of th e

City all intergovernmental agreements . . . and any other

official documents. "

3. The Charter establishes the separation of powers between

the executive and legislative branches of the City .

4. The Charter requires the City Commission to appoint the

Ci ty M anager who serves as the c hief a dministrative o fficer. The

Charter empowers the City Manager to supervise the daily

administrative duties and all non - charter employees, make City

personnel decisions, represent the C ity in contract negotiations,

sign c ontracts on behalf of the City , enforce agreements, and

perform numerous other duties. The City Commissioners may not

interfere with the selection of the personnel of the City

M anager ' s subordinates, nor give orders to City personnel.

5. The Charter esta blishes the City Manager, City Clerk,

and City Attorney. The Charter specifies that the City Clerk and

City Attorney are offices that the City Commission cannot

abolish.

6. The Charter provides for the office of City Attorney and

assigns various duties t o the position. As indicated in section

1.03 of the Charter, " reference to any office or officer includes

any person authorized by law to perform the duties of such

office. "

7. The functions of City Attorney include : attending all

meetin gs; advising the City C ommission as to its compliance with

the Charter and Florida law ; being the legal advisor and

counselor for all departments ; preparing and reviewing contracts,

legal and official instruments ; and endorsing each legal contract

as to form and correctne ss. The Charter states that " [n]o legal

document with [the] Municipality shall take effect until his

approval is so endorsed thereon. "

8. Respondent provided legal services to the City of North

Port from 2001 until August of 2014. From 2001 to 2006,

Res pondent was a partner in the Bowman, George, Scheb & Robinson

law firm which had a contract to provide legal services to the

City. The firm was designated the City Attorney for the City.

In 2006, simultaneously with the renewal of the Bowman George

cont r act, Respondent moved his practice to the Nelson Hesse law

firm, in wh ich he was a partner. From 2006 until August 2012,

the Nelson Hesse law firm had a contract to provide legal

services to the City. The firm was designated as the City

Attorney. In eac h instance, the City contracted with a law firm,

and not a specific individual, to serve as the City Attorney.

9 . From 2001 through August 2012, Respondent, as a member

of a contracted law firm, performed the duties and

responsibilities of the City Attorn ey as outlined in the City

Charter and as provided in the contracts between the City and the

Bowman George firm and the Nelson Hesse firm.

10 . In 2011, the City Commission began discussing

alternatives to the way legal services were provided due to

concer ns with the City ' s rising costs for legal fees. In the

spring of 2012, the City issued a Request for Proposals (RFP)

which sought " proposals from experienced and qualified law firms

to provide a full range of municipal legal services serving as

the City ' s legal counsel on a contractual basis. "

11. Respondent played no role in developing the RFP or

participat ing in any discussions concerning the RFP because he

believed it " would prohibit [his] submission of a proposal to

that RFP . " Commissioner Linda Ya tes testified that Respondent

said he could not participate in the creation or discussions of

the RFP due to ethical issues.

12. Throughout the RFP process, Jonathan R. Lewis served as

City Manager. He had been appointed by the City Commission and

acts a s c hief a dministrative o fficer . In addition to his various

duties, he is responsible for the hiring and firing of City

personnel, representing the City in contract negotiations, and

signing all contracts, agreements, and applications for the City

after ap proval by the City Commission. Mr. Lewis signed a

contract with Suzanne D ' Agresta to provide legal advice and

counsel to the City C ommission during the RFP process since

Respondent remove d himself from the process as he intended to

submit a proposal on be half of hi s firm.

13. RFP applicants were advised in writing that " [t]he City

Attorney is appointed by the [City] Commission, serves as a

Charter officer, and performs duties and responsibilities

pursuant to the Charter of the City of North Port section 1 4.05

and the general law of the State of Florida. " Other specialty

legal services, such as bond work and pension issues , are

outsourced.

14. Minimum qualifications for the position included seven

years ' experience in Florida municipal law, and licensure by and

good standing with T he Florida Bar .

1 5 . The Nelson Hesse firm , partnering with the Lewis,

Longman & Walker law firm , submitted a response to the RFP.

Three other firms submitted r esponses to the RFP. After an

interview process, the Nelson Hesse f irm was ranked first by

three of five members of the City Commission and the general

consensus was that the firm was the most qualified applicant .

The City and the Nelson Hesse firm then negotiated the terms of

an agreement for legal services that w ere su bsequently presented

to the City Commission for approval.

1 6 . On August 15, 2012, the City of North Port approved the

Agreement for Legal Services with the Nelson Hesse firm whereby

the City employed, engaged, and hired " the Firm to serve as and

to perfor m the duties and responsibilities of City Attorney

pursuant to Request for Proposal No. 2012 - 21. " The Agreement

state d :

The Firm designates and the City accepts

Robert K. Robinson as the primary attorney

for City legal work. Mr. Robinson may

utilize the services of other attorneys and

staff in the Firm and [Lewis, Longman and

Walker] as he deems appropriate for City

legal work.

The Agreement , which commenced on Septembe r 1, 2012 , was for a

term of two years and could be renewed for one additional term of

one year.

17. The Agreement further provide d :

The Firm shall serve as the City Attorney who

shall act as legal advisor to, and attorney

and counselor for, the City and all of its

officers in matters relating to their

official duties.

18. On Se ptember 10, 2012, the City Commission voted four -

to - one to approve Nelson Hesse and Respondent to provide legal

services to the City Commission. Commissioner Yates was the lone

dissenter citing numerous reasons for her " no " vote.

19. Nelson Hesse ' s compe nsation was fixed by contract as

required by the Charter. A monthly retainer was set at

$28,333.33 to cover a maximum of 2,400 hours, and the rate was

fixed at $170 for " Hourly Legal Services. " Expenses, including

travel within the county, were to be bil led to the City.

20. The Office of City Attorney was budgeted through

" Charter and Executive Services, " and in FY 2012 the legal

department had a budget of $776,000. Respondent was required to

submit his projected budget annually.

21. Respondent had off ice space for his use at City Hall.

22. Unlike the contract with Ms. D ' Agresta, which was

signed by City M anager Lewis, Respondent ' s Agreement was signed

by then - City Commission Chair Tom Jones. This indicates that

Respondent or his firm was a Charter of ficer serving under the

City Commission, and not a non - charter independent contractor

serving under the City Manager on a temporary basis when

Respondent and his firm recused themselves from any involvement

with the RFP since they intended to submit a prop osal.

23. The Agreement reiterated and expanded the duties and

powers enumerated in the Charter and provided that Respondent may

not assign the Agreement without prior written consent of the

City Commission.

24. Respondent , as an individual , believes he was never

appointed City Attorney by majority vote of the City Commission

nor was he elected to that position. Respondent was also not an

employee of the City. His firm, Nelson Hesse, in which he was a

partner, served as City Attorney. From the evidence , this

appears true even though the Charter refers to the City Attorney

as " he or she. "

25. Following the November 2012 election of two new

commissioners, the City began the process of transitioning from

the use of a firm to serve as the City Attorney to the

appointment of an individual to serve as the City Attorney. This

process , which involved a series of meetings and workshops,

included a review of all legal services for the City and

eventually led to a decision to retain a consultant to conduct a

sear ch for an individual to serve as City Attorney. This

process, in turn, led to the appointment of Mark Moriarty as the

City Attorney by majority vote of the City Commission.

Mr. Moriarty began his employment as the City Attorney on or

about September 15, 2014.

26. Well p rior to Mr. Moriarty ' s start as City Attorney, at

the June 9, 2014, City Commission meeting, at V ice - M ayor Rhonda

DiFranco ' s request, Respondent , on behalf of his firm, Nelson

Hesse, submitted a " Letter of Engagement, " that he drafted, to

the City Commission for approval. Since the 2012 Agreement with

Nelson Hesse was going to expire on August 31, 2014, Respondent

sought to provide the City with a " safety net " to ensure it would

be covered for legal services until Mr. Moriarty was in place and

the City had no need for further services from Nelson Hesse .

27. The Letter of Engagement would allow Respondent,

through his firm, to continue to provide advice and

representation beginning September 1, 2014, as the back up

attorney to the new in - hou se counsel, Mr. Moriarty.

Additionally, the Letter of Engagement specified Respondent would

" provide advice and representation to the City on zoning . . .

[and as] code enforcement hearing officer. " The Letter of

Engagement included a higher hourly fee t han the previous

Agreement with the City ($275 versus $170) . The reason given for

the higher hourly fee was that Respondent could not ascertain how

many hours, if any, his firm would work under the new arrangement

and , therefore , could not offer a volume discount for his time.

Nothing in the June 9 Engagement Letter required the City to use

N elson Hesse for any future work.

28. The testimony as to Respondent ' s motive for placing the

June 9 letter before the City C ommission was disputed by the

parties. Respondent was not representing a private individual or

entity before the City Commission at the meeting. If he was

representing anyone, he believes he was representing the City.

He took no action to impede or frustrate the City Commission ' s

move to an a ppointed City A ttorney. If anything, the evidence

suggests Respondent assisted the City in its search for an in -

house City Attorney by recommending a search firm , and by

speaking positively about the transition to the in - house

situation.

29. Because Mr. Moriarty was not going to assume his new

position until September 15, 2014, the City Manager was

authorized to enter into an interim agreement for legal services

with Respondent ' s firm to cover the two - week period between the

expiration of the prior Legal Agreement with Nelson Hesse and

Mr. Moriarty ' s start date. Consistent with that new agreement,

R espondent attended and provided legal services to the City

Commission at its September 8, 2014, meeting. At this meeting,

his firm was no longer the City Atto rney, but was a contract

attorney providing services during the interim period between

City Attorneys.

30. The Advocate ' s take on the post - City Attorney plans of

Respondent was quite different. The argument was made that

Respondent ' s June 9 letter was d esigned to hire Respondent ' s firm

at an increased rate of $275 per hour, plus to make Respondent

the Zoning Hearing Officer and Code Enforcement Special

M agi strate.

31. The Charter requires reading of a proposed ordinance at

two separate public City Comm ission meetings at least one week

apart. On the second and final reading, the proposed ordinance

is offered for adoption. If adopted, it becomes local law on its

effective date.

32. Respondent, as City Attorn ey, supervised the drafting

of O rdinance 2014 - 29 to create the position of Zoning Hearing

O ffic er for zoning appe a ls and variance matters, effective

September 1, 2014. The Zoning Hearing O fficer was to be hired

and could be terminated by the City Commission, which also would

supervise the position.

33. Ordinance 2014 - 29 was presented to the City Commission

for first reading at the July 14, 2014, City Commission meeting.

Respondent explained the ordinance to the commissioners and

legally advised them on the document.

34. The second reading took pla ce at the City Commission ' s

July 28, 2014, meeting. Again, Respondent offered legal advi ce

to the commissioners about the ordinance ' s effects. Respondent

suggested that an appointment needed to be made that night,

effective September 1, 2014, the day aft er his Legal Agreement

expired. He offered his services and responded "yes" to a

question from City Commissioner Yates regarding whether a

decision s hould be made that night. Respondent provided no other

options other than to appoint him immediately.

35. Other options may have been available since it was " the

norm " (Respondent ' s words) for City M anager Lewis to contract

with attorneys from a variety of law firms for services without

undertaking the competitive solicitation process when specialty

legal se rvices were needed. Respondent himself could have called

an experienced attorney to handle the pending petition. Instead,

Respondent informed the City C ommission it was not his

responsibility to provide other options to the City Commission.

36. When a sked how he would be ready to go with this on

September 1, 2014, Respondent said he would " take off [his] city

attorney hat " and on September 1 " put on the zoning officer

appeals hat. " He made clear to the City Commissioners that he

was " uniquely qualifie d " for the position, therefore no others

need be considered in his opinion.

37. With no other options before them and having been

advised of the urgency of making the appointment, the City

Commission appointed Respondent to serve a four - year term by a

fou r - to - one vote (Commissioner Yates being the lone dissenter).

38. Respondent served in the position of Zoning Hearing

O fficer from September 1 through September 19, 2014. He earned

$1,453.50 for 5.5 hours worked ($264.27 per hour) .

39. Respondent ' s 201 2 Agreement did not provide he could

serve as Zoning Hearing O fficer . Respondent drafted the June 9,

2014, Letter of Engagement allowing him to serve as Zoning

Hearing O f ficer.

40. As Zoning Hearing O fficer , Respondent served at the

pleasure of the City Commission and could be removed with or

without cause by a majority of the City Commissioners.

Respondent had the power to take testimony under oath and compel

attendance of witnesses. He could not engage in any " ex - parte "

communications with City Commi ssioners while serving as Zoning

Hearing O ffi cer because he was serving as a neutral arbitrator in

a quasi - judicial position adjudicating controversies between two

parties: the City and property owners.

41. Res pondent could not serve as back up legal advi s or to

the City from September 1 through 14, 2014, if at the same time

he was serving as Zoning Hearing O fficer since he was supposed to

be in a neutral and, therefore, independent position.

42. Ordinance 2014 - 30 amended the City Code to abolish the

seven - member Code Enforcement Board and create one Code

Enforcement Special Magistrate ( " Special Magistrate " ) position,

effective October 1, 2014. The Special M agistrate was to be

hired by and could be terminated by the City Commission upon a

majority vote. T hat ordinance was presented to the City

Commission for first reading on July 28, 2014.

43. Respondent advised the City Commissioners that the

ordinance created a special m agistrate position , and informed the

City Commissioners he would work on the detail s for the position

in September and October 2014, a period of time covered by the

June 9 L etter of Engagement , but not the 201 2 Legal Services

Agreement. Respondent admitted he drafted the June 9 Letter of

Engagement so that he could assume the special m a gistrate

position himself.

44. After advising the City Commission on the effects of

the ordinance as their attorney, Respondent offered himself for

consideration for the not - yet - existent position and was appointed

on a four - to - one vote of the City Commiss ioners to a two - year

term beginning October 1, 2014.

45. Like the Zoning Hearing O fficer , the Special M agistrate

serves as a neutral arbitrator in a quasi - judicial position that

adjudicates controversies between two parties: the City and the

property own er or alleged violator.

46. Respondent attended ethics classes taught by Chris

Anderson, attorney for the Commission on Ethics. Respondent

denied he had a conflict of interest because in his view a

violation would occur by " the attorney getting up out of his

chair and going down in front of the commission and representing

John Q. Public or John Q. D eveloper with regard to matters that

are appearing before the city commission. That was not the case

with me. "

47. Respondent ' s term as City Attorney ended on August 31,

2014. On August 28, 2014, City M anager Lewis requested

authorization from the City C ommission to hire Respondent to

provide legal services from September 1 through 15, because the

new in - house City Attorney would not begin until September 15 ,

2014.

48. At the next regularly scheduled meeting of the City

Commission on September 8, 2014, Ordinance 2014 - 30 was read a

second time and voted for adoption. Respondent attended the

meeting as the City Commission ' s legal advisor. Mayor Blucher

intro duced him as the " City Attorney " and quickly realized his

error and corrected himself to announce R espondent ' s new title as

" attorney for the City. " Respondent replied, " Careful. "

49. This was apparent ly the only time Respondent reacted

when he was ident ified as the appointed City Attorney. Although

he claims his firm is the entity that contracted with the City to

provide legal services, his silence is an admission he considered

himself at least to be the de facto City Attorney or appointed

public office r.

50. City Commissioner Yates strongly objected every time

Respondent ' s name was presented for the position of interim

attorney fo r the City (for the September 1 through 14 period),

Z oning H earing O fficer, or S pecial M agistrate. In each instance ,

she as ked the City Commission to delay the vote until the new in -

house City A ttorney came on board so that he could have some

input into the decision. She was outvoted four - to - one each time.

51. Municipal governments utilize three typical

arrangements for proc uring legal services: 1) an in - house

attorney who is directly on the government payroll; 2) an

attor ney in private practice whose fi rm (or the individual

attorney) is retained through a contractual relationship under

which the attorney remains employed by his/her firm; and 3) an

attorney who practices in a specialize d area who is retained on

an as - needed basis through contract. Respondent 's work for the

City fits into the second category of lawyer s ret ained to perform

City business.

52. In this matter, R espondent was considered by the City

as a Charter Officer holding a public office. According to the

RFP, the City sought a City Attorney as contemplated by its

Charter when it appointed Respondent for the office. Respondent

held himself out as the City A ttorney to the Florida Attorney

General when requesting legal opinions , to the public on his

website, and to the Commission when filing his Form 1, " Statement

of Financial Interests " (which also identifies him as an employee

of his firm, Nelson Hesse) . Re spondent has never corrected the

suggestion that he is City Attorney. His name appears as the

appointed City Attorney on the City ' s official letterhead, and

his picture hangs in City Hall with the other City officers. In

City Hall, the name plate below h is picture identifies him as the

City Attorney and Charter O fficer. The official minutes of each

City Commission meeting held during his tenure indicate

Respondent is the appointed City Attorney.

53. Respondent admitted, when asked at hearing, that the

C harter contemplates that a person, not an entity, will be the

City Attorney.

54. Respondent denies that he was " appointed " to the

position of City Attorney, yet he did not correct Commissione r

Blucher when he said during a meeting, " we elected him as a ci ty

attorney. " City Commissioner Yates, also testifying at the

hearing, believes the City Commission approved Respondent as the

City Attorney.

55. The City Charter does not require the City Attorney to

take an oath of office and, although City Commissione r Yates does

not recall whether Respondent did, she testified she expected he

would have taken an oath as a matter of course.

56. Respondent ' s current denial of any violations of

chapter 112, Florida Statutes, and insistence that Nelson Hesse

is the City Attorney conflicts with previous statements he made.

At one point he declared, " Either I am or I am not the City

Attorney. " Further, when declining to negotiate an assignability

clause in his June 9, 2014, Letter of Engagement because, as he

explained to the City Commission, " But, the thing you have to

understand is, Number 1, is that Î is I ' m sort of the center of

the universe, so wherever I go, that ' s where it [ this contract ]

goes . " Respondent accurately , and appropriately, portrayed

himself as the pri mary attorney for the City, regardless of his

firm being named in his 2012 A greement for L egal Services to the

City.

57. Respondent regularly signed official documents as

" Robert K. Robinson, City Attorney, " not as " Nelson Hesse as City

Attorney, by R obert K. Robinson, " or some other form of signature

where he states his firm is the City Attorney.

58. It is significant that the 2012 Agreement for Legal

Services was signed by Tom Jones, then - Chair of the City

Commission. The City M anager did not sign the document as he

would have if this contract and the legal services rendered

thereunder fell into the category of non - charter personnel

performing legal (or other) services for the City. Only the City

Commission can appropriately sign an agreement or co ntract

designating a Charter Officer such as the City Attorney.

59. Respondent was accountable to the City Commission for

work performed under the Agreement. He acknowledged that the

Agreement was on a City Commission agenda " at a public hearing

where th ey [the Commissioners] adopted Î or they executed the

contract. "

CONCLUSIONS OF LAW

60 . DOAH has jurisdiction over the parties and the subject

matter of this proceeding pursuant to sections 120.569 and

120.57(1), Fl orida Stat utes .

61. Respondent is sub je ct to the requirements of

c hapter 112, part III, Florida Statutes, t he Code of Ethics for

Public Officers and Employees, for his acts and omissions during

his tenure with the City of North Port .

62 . Se ction 112.322 and Florida Administrative Code

R ule 34 - 5.0015, authorize the Commission to conduct

investigations and to make public reports on compl aints

concerning violations of chapter 112 , part III, which is referred

to as the Code of Ethics for Public Officers and Employees.

63. The burden of proof, a bsent a statutory directive to

the contrary, is on the Commission, the party asserting the

affirmative of the issue of these proceedings. Dep't of Transp.

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

v. Dep't of Health & Rehabilitativ e Serv s . , 348 So. 2d 349 (Fla.

1st DCA 1977). In this proceeding, it is the Commission, through

its Advocate, that is asserting the affirmative: that Respondent

violated s ections 112.313(3), 112.313(6), 112.313(7) (a) , a nd

112.313(16) .

6 4. Commissio n pr oceedings that seek recommended penalties

against a public officer or employee require proof of an alleged

violation by clear and convincing evidence. See Latham v. Fl a .

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

§ 120.57(1)(j) , Fla. Stat . Therefore, the burden of establishing

the elements of a violation by clear and convincing evidence is

on the Commission.

6 5. As noted by the Supreme Court of Florida:

Clear and convincing evidence requires that

the evidence must be found to be c redible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony 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 th e mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

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

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

Court of Florida also explained, however, that, although the

" clear and convincing " standard requires more than a

" preponderance of the evidence, " it does not require proof

" beyond and to the exclusion of a reasonable doubt. " Id .

66. Respo ndent is alleged in the Order Finding Probable

Cause to have violated four provisions of the Code of Ethics for

Public Officers and Employees, specifically, s ections 112.313(3),

112.313(6), 112.313(7)(a), a nd 112.313(16) :

[B] y providing counsel and recomm endations to

the City Commission regarding the adoption of

local Ordinance 2014 - 29 requiring the

appointment of a Zoning Hearing Officer and

encouraging the City Commission to amend

Part II, Chapter 2, Article IX, of the City

Code to replace the Code Enfo rcement Board

with a Code Enforcement Special Magistrate

and offering himself for consideration for

the position of Zoning Hearing Officer as

well as Code Enforcement Special Magistrate.

6 7. Section 112.313(16)(a) , provides:

For the purposes of this se ction, " local

government attorney " means any individual who

routinely serves as the attorney for a unit

of local government. The term shall not

include any person who renders legal services

to a unit of local government pursuant to

contract limited to a s pecific issue or

subject, to specific litigation, or to a

specific administrative proceeding. For the

purposes of this section, " unit of local

government " includes, but is not limited to,

municipalities, counties, and special

districts.

6 8. Respondent r outinely served as the attorney for the

City of North Port. Specifically, he was identified in the

August 2012 Agreement for Legal Services between the City of

North Port and the Nelson Hesse law firm " as the primary attorney

for City legal work. "

6 9. T he August 2012 contract under which Respondent

rendered legal services to the City of North Port was not limited

to a specific issue or subject, to specific litigation, or to a

specific administrative proceeding. The August 2012 contact

provided: " The Ci ty hereby employs, engages and hires the Firm

to serve as and to perform the duties and responsibilities of

City Attorney pursuant to Request for Proposal No. 2012 - 21. " In

that capacity, " [t]he Firm shall serve as the City Attorney who

shall act as legal advisor to, and attorney and counselor for,

the City and all of its officers in matters relating to their

official duties. " The services provided to the City were

comprehensive, not limited to a specific issue or subject, to

specific litigation, or to a s pecific administrative proceeding.

7 0. The Commission asserts that Respondent was a " public

officer, " not a " local government attorney, " because the City

Charter provides that " [t]he City Commission shall, by majority

vote, appoint a City Attorney who sh all be a lawyer admitted to

practice in this state. " The Commission argues that Respondent

was appointed as City Attorney by the City Commission and

performed the duties enumerated in the City Charter. While

Respondent performed the duties enumerated in the City Charter

for the City Attorney, the City specifically retained the Nelson

Hesse firm to serve as and to perform the duties and

responsibilities of City Attorney. However, RFP 2012 - 21, " Legal

Services for City Attorney Î Firm " makes numerous refere nces to

the Nelson Hesse firm serving as " City Attorney, " with Resp ondent

serving as the " primary attorney for legal work. " Moreover, the

record supports that Respondent through his firm, Nelson Hesse,

was appointed City Attorney at a City Commission meet ing. This

does not resolve the issue of whether Respondent is the City

Attorney or whether his firm provides City Attorney services for

the City as a " local government attorney , " pursuant to section

112.313(16)( a) .

71. Respon dent is charged with violatin g s ect ion

112.313(3) , which provides as follows:

DOING BUSINESS WITH ONE ' S AGENCY. No

employee of an agency acting in his or her

official capacity as a purchasing agent, or

public officer acting in his or her official

capacity, shall either directly or i ndirectly

purchase, rent, or lease any realty, goods,

or services for his or her own agency from

any business entity of which the officer or

employee or the officer ' s or employee ' s

spouse or child is an officer, partner,

director, or proprietor or in which such

officer or employee or the officer ' s or

employee ' s spouse or child, or any

combination of them, has a material interest.

Nor shall a public officer or employee,

acting in a private capacity, rent, lease, or

sell any realty, goods, or services to the

officer ' s or employee ' s own agency, if he or

she is a state officer or employee, or to any

political subdivision or any agency thereof,

if he or she is serving as an officer or

employee of that political subdivision. The

foregoing shall not apply to dist rict offices

maintained by legislators when such offices

are located in the legislator ' s place of

business or when such offices are on property

wholly or partially owned by the legislator.

This subsection shall not affect or be

construed to prohibit contr acts entered into

prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment.

72 . To establish a violation of s ection 112.313(3), the

following elements must be prove d:

1. Respondent must have been either a public

employee acting in an official capacity as a

purchasing agent, or a public officer acting

in an official capacity.

2. Respondent must have either directly or

indirectly purchased, rented or leased some

r ealty, goods or services.

3. Such purchase, rental or lease must have

been for Respondent ' s own agency.

4. Such purchase, rental or lease must have

been from a business entity of which

Respondent, Respondent ' s spouse or

Respondent ' s child is an offic er, partner,

director or proprietor, or in which

Respondent, Respondent ' s spouse or

Respondent ' s child, or any combination of

them, has a material interest.

OR

To establish a violation of section 112.313(3), the following

elements must be proved:

1. Res pondent must have been either a public

officer or employee acting in a private

capacity.

2. Respondent must have rented, leased or

sold realty, goods or services.

3. Such rental, lease or sale must have been

to Respondent ' s own agency, if Respondent was

a state officer or employee, or to

Respondent ' s political subdivision or an

agency thereof, if Respondent was serving as

an officer or employee of that political

subdivision.

73. A violation of s ection 112.313(3), can be established

by proof that Res pondent provided counsel and recommendations to

the City Commission, as alleged in the Order Finding Probable

Cause, regarding the adoption of local Ordinance 2014 - 29

requiring the appointment of a Zoning Hearing Officer and

encouraging the City Commission to amend Part II, Chapter 2,

Article IX, of the City Code to replace the Code Enforcement

Board with a Code Enforcement Special Magistrate and by offering

himself for consideration for the position of Zoning Hearing

Officer , as well as Special Magistrate. T he Order Finding

Probable Cause, on its face, allege s a violation of s ect ion

112.313(3) .

74. T he Advocate argues that Respondent , " as a public

officer , " was prohibited by s ectio n 112.313(3) from doing

business with the City of North Port, as a " local government

attorney " within the meaning and scope of s ection 112.313(16)(a) .

However , s ection 1 12.313(16)(b), specifically provides the

following exemption :

It shall not constitute a violation of either

subsection (3) or subsection (7) for a unit

of loca l government to contract with a law

firm, operating as either a partnership or a

professional association, or in any

combination thereof, or with a local

government attorney who is a member of or is

otherwise associated with the law firm, to

provide any or all legal services to the unit

of local government, so long as the local

government attorney is not a full - time

employee or member of the governing body of

the unit of local governm ent.

Under t he exemption provided in s ection 112.313(16)(b), Florida

Sta tutes, it makes no dif ference whether the " local government

attorney " is considered a " public officer " of the unit of local

government . Regardless of whether Respondent is a "public

officer" or "local government attorney," he is not a full - time

employee o r member of the governing body of the unit of local

government, here the City, and would not be prohibited from

providing legal services to the City.

7 5 . Respondent is charged with violating s ect ion

112.313(6) , which 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, t o secure a special

privilege, benefit, or exemption for himself,

herself, or others. This section shall not

be construed to conflict with s. 104.31.

The term " corruptly " is defined by s ection

112.312(9), Florida Statutes, as follows:

" Corruptly " means done with a wrongful intent

and for the purpose of obtaining, or

compensating or receiving compensation for,

any benefit resulting from some act or

omission of a public servant which is

inconsistent with the proper performance of

his or her public duties.

To satisfy the statutory element that one acted " corruptly, "

proof must be adduced that Respondent acted with reasonable

notice that his conduct was inconsistent with the proper

performance of his public duties and would be a violation of the

law or cod e of ethics. See Siplin v. Comm' n on Ethics , 59 So. 3d

150, 151 - 152 (Fla. 5th DCA 2011); Kinzer v. State Comm' n on

Ethics , 654 So. 2d 1007. 1010 (Fla. 3d DCA 1995).

7 6 . To establish a violation of s ect ion 112.313(6) , the

following elements must be pro ved:

a. Respondent must have been a public

officer or employee;

b. Respondent must have:

i. used or attempted to use his official

position or any property or resources within

his trust, or

ii. performed his official duties;

c. Respondent ' s ac tions must have been taken

to secure a special privilege, benefit, or

exemption for himself or others;

d. Respondent must have acted corruptly,

that is, with wrongful intent and for the

purpose of benefiting himself or another

person from some act or omi ssion which was

inconsistent with the proper performance of

public duties.

7 7 . Section 112.313(6) , expressly provides that Respondent,

as a " local government attorney, " is subject to its requirements

and proscriptions. Section 112.313(16)(b) , provides that the

" standards of conduct " set forth in s ection 112.313(6) apply to

any person who serves as a local government attorney.

78. What makes any findings of ethical violations

problematic is that Respondent was acknowledged by the City

Commission, its s taff, and the general public as the City

Attorney based upon a number of indicia set forth in this O rder,

such as signing documents as " City Attorney, " having his picture

in the lobby of the City Commission as City Attorney and a

Charter Officer, being lis ted on the official letterhead of the

City as " City Attorney, " listing himself as City Attorney on his

firm 's website biography, etc. Despite the frequent moniker of

" City Attorney, " in virtually every instance described at

hearing, Respondent could be vi ewed as either the " City Attorney "

or a " local government attorney. " The undersigned believes the

intent of Respondent ' s actions throughout the matters that have

subjected him to this review was to have his firm designated as

the " City Attorney - Firm " desc ribed by the 2012 RFP . However,

that very document refers to the " City Attorney " as being

" appointed by the [City] Commission, serves as a Charter Officer,

and performs duties pursuant to the Charter of the City of North

Port section 14.05 and the general laws of the State of Florida. "

This dichotomy in the very document under which Respondent and

his firm were hired has created confusion as to which specific

statutory provisions apply to the services he and his firm have

rendered, as well as the responsi bilities owed by Respondent to

the City.

79. In the course of providing legal services to the City,

Respondent and his firm performed a wide variety of services from

2012 - 2014 under the most recent Agreement. In fact, when

Respondent made known that he a nd his firm would be submitting a

proposal to continue to provide legal services under the

Agreement, he suggested the City Commission hire another attorney

to advise them during the pendency of the RFP discussions,

thereby appropriately avoiding a conflic t of interest. Once the

new Agreement was awarded to Respondent and his firm, they

provided a range of services that could define Respondent as a

" local government attorney, " who perform ed whatever legal

services he and his firm were called upon to provid e. Had the

Agreement run its course through August 31, 2014, Respondent

would not have been subject to any potential ethical violations.

80. The rub here is that while the City Commission was in

the process of transitioning to an in - house City Attorney,

Respondent presented the June 9, 2014, letter in which he and his

firm offered to continue to provide legal services beginning

September 1, 2014, after the expiration of his two - year Agreement

with the City. This letter was duly executed by the City Man ager

and appeared to be Respondent ' s way of ensuring that his long -

time client, the C ity, would not be without legal representation

during the two - week gap between the expiration of the Nelson

Hesse contract and the start of M r . Moriarty as the in - house Ci ty

Attorney. Where matters got cloudy was when the two City

ordinances, 2014 - 29 and 2014 - 30 , concerning the Zoning Hearing

Officer and Special Code Enforcement Magistrate were being

developed, a time when Respondent and his firm were assisting in

the draf ting of those ordinances, including the qualifications

for the two positions, while under contract as either the " City

Attorney " or " local government attorney " for the City.

81. Except for his involvement in the development of the

two ordinances relating to the Zoning Hearing Officer and Special

Magistrate, nothing in the record suggests that Respondent ever

provided less than exemplary legal services to the City. Based

upon his years of service to the City and based upon the fact

that Respondent generall y had the majority of the Commissioners

on his side when he made recommendations for action to be taken,

Respondent ' s recommendations with respect to the City Commission

hiring him as both the Zoning Hearing Officer and the Special

Magistrate put him in an advantageous position with respect to

securing those two contracts. E xcept by Commissioner Y ates who

appeared to be generally critical of Respondent , Respondent was a

trusted and presumably well - respected City Attorney or attorney

for the City. A pruden t action for Respondent to have take n when

the two ordinances came before the City Commission would have

been to inform the City Commission it should contract with an

outside attorney to handle the discussions and, ultimately ,

negotiations that led to Resp ondent securing both positions .

Even more prudent would have been a suggestion by Respondent that

the City Commission engage the services of this outside attorney

throughout the development of the two positions described by the

ordinances once he knew he intended to apply for one or both of

them. Had the City Commission voted not to engage outside

services, even with the knowledge Respondent would be applying

for one or both of the positions, Respondent would have covered

himself by avoid ing any conflict or appearance of impropriety

through full and open disclosure . By proceeding with the

ordinances at the meetings while he was still under contract as

the City Attorney, Respondent left the clear impression that he

had a personal pecuniary interest in the outcome of the vote on

the two ordinances . By offering his services at the 11th hour as

the best qualified candidate for the Zoning Hearing Officer

position, t he obvious conclusion an outsider to the process would

make is that Respondent created an unfair advantage for himself

and his firm.

82 . Respondent is also charged with violating s ection

112.313(7)(a) , which provides as follows:

CONFLICTING EMPLOYMENT OR CONTRACTUAL

RELATIONSHIP. Ï

(a) No public officer or employee of an

agency shall have or hold any employment or

contractual relationship with any business

entity or any agency which is subject to the

regulation of, or is doing business with, an

agency of which he or she is an officer or

employee, excluding those organizations and

their off icers who, when acting in their

official capacity, enter into or negotiate a

collective bargaining contract with the state

or any municipality, county, or other

political subdivision of the state; nor shall

an officer or employee of an agency have or

hold any employment or contractual

relationship that will create a continuing or

frequently recurring conflict between his or

her private interests and the performance of

his or her public duties or that would impede

the full and faithful discharge of his or he r

public duties.

83 . To establish a violation of s ection 112.313(7)(a) , the

following elements must be proved:

1. Respondent must have been a public

officer or employee.

2. Respondent must have been employed by or

have had a contractual relationship with a

business entity or an agency.

3. Such business entity or state or agency

must have been subject to the regulation of,

or doing business with, the agency of which

Respondent was an officer or employee.

OR

1. Respondent must have been a public

officer or employee.

2. Respondent must have held employment or a

contractual relationship that will:

(a) create a continuing or frequently

recurring conflict between Respondent ' s

private interests and the performance of

Respondent ' s public duties; or

(b) impede the full and faithful discharge

of Respondent ' s public duties.

84 . A violation of s ection 112.313(7)(a) , c ould be

established by proof that Respondent provided counsel and

recommendations to the City Commission, as alleged in the Order

F inding Probable Cause, regarding the adoption of local Ordinance

2014 - 29 requiring the appointment of a Zoning Hearing Officer ; by

encouraging the City Commission to amend Part II, Chapter 2,

Article IX, of the City Code to replace the Code Enforcement

Boa rd with a Special Magistrate ; and by offering himself for

consideration for the position of Zoning Hearing Officer , as well

as Special Magistrate. Thus, the Order Finding Probable Cause,

on its face, correctly allege d a violation of s ection

112.313(7)(a) .

85. The first part of this statute applies because

Respondent and his law firm were doing business with the City.

A prohibited conflict arose under the second part of section

112.313(7)(a) , which prohibits any employment or contractual

relationship tha t could impede a public officer ' s ability to

fully and faithfully discharge his public duties. This provision

creates an objective standard that requires an examination of the

nature and extent of the public officer ' s duties together with a

review of his private interests to determine whether the two are

compatible, separate, distinct , or whether they coincide to

create a situation that " tempts dishonor. " Zerwick v. Comm ' n on

Ethics , 409 So. 2d 57, 61 (Fla. 4th DCA 1982) . In this respect,

the statute is preventive in nature, and does not require any

intentionally wrongful conduct by a public officer. See C E O 13 -

16 (Section 112.313(7)(a) is prophylactic in nature and is

designed to prevent situations where a public officer ' s private

economic consideration s could influence his ability to faithfully

discharge his public duties.)

86. This provision refers to the common law notion that

" [t ]he same person cannot act for himself and at the same time

with respect to the same matter as the agent of another whose

interests are conflicting. The two positions impose different

obligations, and their union would at once raise a conflict

between interest and duty and, constituted as humanity is, in the

majority of cases would be overborne in the struggle. " Zerwick ,

40 9 So. 2d at 61.

87. Respondent advised the City Commission on legal issues.

In that capacity, Respondent can and did recommend and influence

matters that directly benefited both Respondent and Nelson Hesse.

There was an inherent conflict in this situatio n for Respondent,

as he could have been tempted to use his official position to

suggest and advocate for recommendations favorable to himself and

his law firm. Such recommendations included drafting or signing

off on requirements for the two new positions of Zoning Hearing

Officer and Special Magistrate.

8 8 . T he Nelson Hesse firm, with Respondent as the primary

attorney, had a contract with the City to provide all nature of

legal services to the City . Since Respondent was not an employee

or member of th e City Commission, s ection 112.313(16)(b),

permitted Respondent to sell legal services to his agency (the

City) notwithstanding the provisions of s ection 112.313(7)(a) .

Similarly, s ection 112.313(16)(b), specifically permitted

Respondent to have an employ ment or contractual relationship with

his law firm that would potentially create a continuing or

frequently recurring conflict between his private interests and

the performance of his public duties or that would impede the

full and faithful discharge of hi s public duties.

89 . Thus, the Commission has not establishe d that

Respondent has violated s ection 112.313(7)(a) .

9 0 . Respondent is also charged with violating s ection

112.313(16)(c), which provides, in pertinent part, as follows:

No local government a ttorney or law firm in

which the local government attorney is a

member, partner, or employee shall represent

a private individual or entity before the

unit of local government to which the local

government attorney provides legal services.

9 1 . To establ ish a violation of s ection 112.313(16)(c), the

following elements must be proved:

1. Respondent must have been a local

government attorney.

2. Respondent or the law firm in which the

local government attorney is a member,

partner, or employee has repr esented a

private individual or entity before the unit

of local government to which the local

government attorney provides legal services.

9 2 . The Commission asserts that Respondent represented

himself and/or the Nelson Hesse law firm before the City

Com mission when he provided counsel and recommendations to the

City Commission regarding the adoption of Ordinance 2014 - 29

requiring the appointment of a Zoning Hearing Officer and when he

offered himself for consideration for the position of Zoning

Hearing O fficer. Similarly, the Commission asserts that

Respondent represented himself and the Nelson Hesse law firm

before the City Commission when he provided counsel and

recommendations to the City Commission regarding the adoption of

local Ordinance 2014 - 30 re garding the establishment of a Special

Magistrate to conduct code enforcement violation hearings. This

became true the moment he or his firm decided they were

interested in seeking either or both of the two positions created

by the new ordinances. When R espondent or his firm continued to

represent the City regarding the two ordinances that created new

positions with the City, he violated section 112.313(16)(c),

because the position he sought was for a " private individual or

entity " since both Respondent a nd Nelson Hesse no longer would be

either the City Attorney or the local government attorney after

August 31 , 2014, when the ir contract expired. He was thus acting

on behalf of a private individual or entity since the positions

he sought to assume after a doption of the ordinances were for him

or his firm once they became private citizens as to the City

after August 31.

9 3 . Advocate has, by clear and convincing evidence,

established the following: 1) Respondent violated section

112.313(6), Florida Statut es , by misusing his public position to

secure special privilege and benefit himself and his law firm;

and 2) Respondent violated section 112.313(16)(c), Florida

Statutes, through his actions regarding the two proposed

ordinances as a " local government atto rney. "

9 4 . The penalties availab le for a former public officer who

has violated the Code of Ethics or a person who is subject to the

standards of the Code of Ethics, but who is not a public officer

or employee include: public censure and reprimand; civi l penalty

not to exceed $10,000; and restitution of any pecuniary benefit

received because of the violation committed. See

§ 112.317(1)(d), Fla. Stat. Neither chapter 112, p art III, n or

chapter 34 - 5 , recognize any mitigating or aggravating factors to

con sider when determining the appropriate penalty.

9 5 . The Advocate argues that the matter of In Re: James R.

English , Case No. 93 - 1523EC ( Fla. DOAH Nov. 19, 1993; Fla. Comm'n

on Ethics Feb. 1, 1994), is analogous to the current matter. In

th at case , Mr. E nglish was hired as the City Attorney for

Tallahassee, and was paid a monthly salary, along with an

overhead contribution to his law firm since he worked primarily

from the firm. Mr. English signed an agreement wh ereby he was

designated as the City A ttorn ey , a Charter O fficer of the City of

Tallahassee, and was a full - time emplo yee of the C ity. The

agreement read, in part, as follows: " With the e xception of pro

bono work, his [ English ' s] professional time was to be

exclusively devoted to ' the legal work and other obligations of

the charter office of the city attorney. '" Id . at par. 12.

Mr. English ' s firm was contemplated by the agreement as eligible

to provide and, in fact, did provide other hourly work to the

City of Tallahassee , while Mr. English ser ved as City A ttorney.

Because he w as a full - time employee of the C ity, Mr. English did

not receive a salary from his law firm. However, he was eligible

and did share in the firm ' s annual profits, the City of

Tallahassee being one of the firm ' s largest cl ients.

9 6 . Hearing Officer Mary Clark found Mr. English in

violation of the Code of Ethics because he " directly or

indirectly " purchased services from his own firm, in violation of

section 112.313(3) . She further found that Mr. English ' s firm

" did busine ss with the agency of which he was an officer, " in

violation of section 112.313(7), Florida Statutes. The

Commission on Ethics confirmed the Recommended Order and entered

a Final O rder adopting the recommended penalty of $5,000

restitution and $10,000 fin e ($5,000 per violation) against

Mr. English. The $5,000 bore no relationship to the amount of

profits distributed to Mr. English by his law firm while he was a

full - time employee of the city. T he orders indicate he received

distributions far in excess of $5,000.

9 7 . In the case before us, Respondent was never charged

with being a full - time employee of the City of North Port. While

there are indicia of his being considered the City Attorney (see

paragraph s 52 and 78 above) , a Charter Officer of the Cit y, he

maintained throughout that the RFP for legal services governing

his employment from 2012 - 2014 stated on its face that it was for

" Legal Services for City Attorney - Firm, " and that he was not

tech nically the City Attorney , but merely a " local governmen t

attorney . " Regardless of his designation as City Attorney or as

a local government attorney, Respondent should have advised the

City to retain outside counsel during the development and passage

of O rdinances 2014 - 29 and 2014 - 30, creating the Zoning H ear ing

O fficer and Special M agistrate positions since he intended to

apply for one or both of the positions. This simple act on his

part would have avoided both a conflict of interest and any

appearance of impropriety. The fact that four of the five

C ommiss ioners supported his contracting to perform the duties of

the two newly - created positions does not absolve him from his

responsibility to protect the public by having the City advised

by outside counsel , while he sought the positions contemplated by

the tw o City ordinances. When Respondent previously sought to

bid to provide City Attorney services in 2012, he properly

suggested that the City hire outside counsel to oversee and

advise the City during the RFP process , thereby avoiding any

conflict of interes t on his part . He could just as easily have

recommended the City take the same action during the development

of the two ordinances.

9 8 . Based upon the two violations of the Code of Ethics, an

appropriate penalty is $5,000 per violation, for a total fine of

$10,000 . Unlike the case of James English, relied upon by the

Advocate in recommending a penalty in this matter, Respondent ' s

situation is considerably different. His firm, Nelson Hesse,

performed services under an RFP awarded to the firm, with

Respon dent listed as the primary attorney for City legal

services. While Respondent should have advised the City to seek

outside counsel concerning the development of the two ordinances

creating the Zoning H earing O fficer and S pecial M agistrate

positions, the C ity Commission voted to contract with him for

each position when they had every right to select someone else.

The $10,941.00 he earned by serving for a short time in the two

positions is distinguishable from the firm 's profits earned by

Mr. English at a t ime when he was employed full - time by the City

of Tallahassee. Respondent here was not a full - time employee of

the City, especially after August 31, 2014, when work was

performed as Zoning Hearing Officer or Code Enforcement Special

Magistrate. Mr. Engli sh benefited from money received for work

performed by others in his firm at the same time he was a full -

time City of Tallahassee employee , rather than from the fruit of

his labors since he was prohibited from performing non - city legal

services, except for pro bono work.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding that

Respondent, Robert K. Robinson, violated sections 112.313 (6) and

112.313(16)(c), Florida Statutes , and ordering him to pay a

penalty of $5,000 per violation ($10,000 total) .

DONE AND ENTERED this 31st day of January , 201 7 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of A dministrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of January , 201 7 .

COPIES FURNISHED:

Elizabeth A. Miller, Esquire

Office of the Attorney General

Plaza Level 01, The Capitol

Tallahassee, Florida 32399

(eServed)

Mark Herron, Esquire

Messer Caparello, P.A.

Post Office Box 15579

2618 Centennial Place

Tallahassee, Florida 32317

(eServed)

Brennan Donnelly, Esquire

Messer Caparello , P.A.

2618 Centennial Place

Tallahassee, Florida 32308

(eServed)

Millie Wells Fulford, Agency Clerk

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 57 09

(eServed)

C. Christopher Anderson, III, General Counsel

Florida Commission on Ethics

Post Office Drawer 15709

Tallahassee, Florida 32317 - 5709

(eServed)

Virlindia D oss, Executive Director

Florida Commission on Ethics

Post Office Drawer 15709

Tallahass ee, Florida 32317 - 5709

(eServed)

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 ag ency that

will issue the Final Order in this case.