Robert K. Robinson, Appellant,
Commission on Ethics, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Commission on Ethics.
Herron and Robert J. Telfer of Messer Caparello, P.A.,
Tallahassee for Appellant.
Jo Bondi, Attorney General, and Elizabeth A. Miller,
Assistant Attorney General, Tallahassee for Appellee.
K. Robinson appeals the final order and public report in
which the Commission on Ethics recommended a $10, 000 civil
penalty and a public censure and reprimand for ethical
violations committed by Robinson while he was serving as a
contracted city attorney. We affirm the portion of the order
finding that Robinson violated section 112.313(6), Florida
Statutes (2014), because competent substantial evidence
supports that finding, but we reverse the portion of the
order finding that Robinson violated section 112.313(16)(c)
because the Commission misconstrued that statute. We remand
the case to the Commission for reconsideration of the
served for more than 13 years as the city attorney for the
City of North Port pursuant to lucrative contracts between
the City and Robinson's law firms. The 2012-14 contract,
for example, provided a monthly retainer of $28, 333 (which
equates to $340, 000 per year) plus travel and other
arrangement as the contracted city attorney ended in
mid-September 2014 when the City hired an in-house city
attorney. A couple of months before his contract as city
attorney was scheduled to end, Robinson drafted and presented
ordinances to the city commission to create the positions of
Zoning Hearing Officer and Code Enforcement Special
Magistrate. Robinson then successfully persuaded the city
commission to appoint him to these positions without
considering anyone else because, as he told the city
commission, he was "uniquely qualified" for the
positions and the appointments had to be made immediately.
appointments formed the basis of a complaint filed with the
Commission by a city resident. Commission staff investigated
the complaint, and based on the investigation, the Commission
found probable cause to believe that Robinson violated
section 112.313(3), (6), (7), and (16) by "providing
counsel and recommendations to the City Commission regarding
the adoption of [the ordinance] requiring the appointment of
a Zoning Hearing Officer and encouraging the City Commission
to amend . . . the City Code to replace the Code Enforcement
Board with a Code Enforcement Special Magistrate and offering
himself for consideration for the position of Zoning Hearing
Officer as well as Special Magistrate."
on the finding of probable cause,  the Commission referred the
case to the Division of Administrative Hearings to appoint an
administrative law judge (ALJ) to conduct a "public
hearing." See § 112.324(3), Fla. Stat.;
Fla. Admin. Code R. 34-5.010. After a two-day hearing, the
ALJ issued a detailed recommended order finding that Robinson
did not violate section 112.313(3) or (7) but that he did
violate section 112.313(6) and (16)(c). With respect to
section 112.313(6), the ALJ explained:
Based upon his years of service to the City and based upon
the fact that [Robinson] generally had the majority of the
Commissioners on his side when he made recommendations for
action to be taken, [Robinson]'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. . . . By proceeding with the ordinances at the
meetings while he was still under contract as the City
Attorney, [Robinson] 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, the obvious conclusion an outsider to the process
would make is that [Robinson] created an unfair advantage for
himself and his firm.
with respect to section 112.313(16)(c), the ALJ explained:
When [Robinson] 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 [Robinson] and [his law firm] no longer would be
either the City Attorney or the local government attorney . .
. when their contract expired. He was thus acting on behalf
of a private individual or entity since the positions he
sought to assume after adoption of the ordinances were for
him or his firm once they became private citizens as to the
City . . . .
on these violations, the ALJ recommended a $10, 000 civil
penalty-$5, 000 for each violation.
filed exceptions to the recommended order in which he argued,
among other things, that (1) the Commission failed to prove
that he violated section 112.313(6) because the ALJ did not
expressly find, and the evidence did not establish, that he
acted "corruptly, " and (2) the Commission failed
to prove that he violated section 112.313(16)(c) because
other provisions of subsection (16) expressly authorized him
to refer business to his law firm. The Commission-with no
noted dissent-rejected Robinson's exceptions and
adopted the ALJ's findings that Robinson violated section
112.313(6) and (16)(c), and based on these violations, the
Commission recommended that the Governor impose a $10, 000
civil penalty and also publicly censure and reprimand
timely appeal followed.
jurisdiction to review the Commission's final order and
public report even though it merely recommends the
imposition of a penalty. See § 112.3241, Fla.
Stat. ("Any final action by the commission taken
pursuant to [part III of chapter 112] shall be subject to
judicial review in a district court of appeal upon the
petition of the party against whom the adverse opinion,
finding, or recommendation is made."); cf. Rivera v.
Comm'n on Ethics, 195 So.3d 1177 (Fla. 1st DCA 2016)
(holding that the appellant's constitutional challenge to
the statute authorizing the House Speaker to impose the
penalties recommended by the Commission was not yet ripe for
judicial review, but reviewing- and summarily rejecting-the
appellant's argument that his due process rights were
violated in the proceedings that culminated in the
Commission's final order and public report).
review of the Commission's final order and public report
is governed by the standards in section 120.68: the factual
findings are reviewed for competent substantial evidence,
see § 120.68(7)(b), Fla. Stat.; Blackburn
v. Comm'n on Ethics, 589 So.2d 431, 436 (Fla. 1st
DCA 1991); the legal conclusions are reviewed de
novo, see § 120.68(7)(d), Fla. Stat.;
Brown v. Comm'n on Ethics, 969 So.2d 553, 556
(Fla. 1st DCA 2007); and the recommended penalty is reviewed
for an abuse of discretion, see § 120.68(7)(e),
Fla. Stat.; Criminal Justice Standards & Training
Comm'n v. Bradley, 596 So.2d 661, 664 (Fla. 1992).
And, pursuant to section 120.68(8), the order must be
affirmed "[u]nless the court finds a ground for setting
aside, modifying, remanding, or ordering agency action or
ancillary relief under a specified provision of [section
first issue on appeal, Robinson contends that the Commission
erred in finding that he violated section 112.313(6) because
the evidence does not establish that he acted
"corruptly" as required by the statute. We
112.313(6) provides in pertinent part:
No public officer, employee of an agency, or local government
attorney shall corruptly use or attempt to use his
or her official position . . . to secure a special privilege,
benefit, or exemption for himself, herself, or others.
(Emphasis added.) The term "corruptly" is defined
to mean "done with a wrongful intent and for the purpose
of obtaining . . . any benefit . . . which is inconsistent
with the proper performance of [the respondent's] public
duties." § 112.312(9), Fla. Stat.; see also
Siplin v. Comm'n on Ethics, 59 So.3d 150 (Fla. 5th
DCA 2011); Bennett v. Comm'n on Ethics, 871
So.2d 924, 926 (Fla. 5th DCA 2004). Case law has construed
this provision to require proof that the respondent acted
"with reasonable notice that [his or] her conduct was
inconsistent with the proper performance of [his or] her
public duties and would be a violation of law or the code of
ethics." Siplin, 59 So.3d at 151-52 (quoting
Blackburn, 589 So.2d at 434).
substantial evidence supports the ALJ's implicit finding
that Robinson acted corruptly. Specifically, the ALJ found, and
the record supports, that Robinson held a position of great
influence with the city commission as the long-serving city
attorney and that around the same time he lost his long-time
position as city attorney, he persuaded the city commission
to create and appoint him to the new positions of Zoning
Hearing Officer and Code Enforcement Special Magistrate.
Robinson did not merely suggest that he should be considered
for the two positions, but rather he wielded substantial
influence over the drafting of the ordinances creating the
positions; he advised on the qualifications necessary for
each position; and he then offered his services as the best
qualified person without providing any option other than to
appoint him immediately. Cf. Bennett, 871 So.2d at
926 (determining that town council chairman did not act
corruptly by marking-up the town's revised zoning map in
a way that would benefit his properties because the ...