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Robinson v. Commission on Ethics

Florida Court of Appeals, First District

March 29, 2018

Robert K. Robinson, Appellant,
v.
Commission on Ethics, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Commission on Ethics.

          Mark Herron and Robert J. Telfer of Messer Caparello, P.A., Tallahassee for Appellant.

          Pamela Jo Bondi, Attorney General, and Elizabeth A. Miller, Assistant Attorney General, Tallahassee for Appellee.

          WETHERELL, J.

         Robert 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 penalty.

         I

         Robinson 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 expenses.

         Robinson's 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.

         These 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."

         Based on the finding of probable cause, [1] 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.

         And, 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 . . . .

         Based on these violations, the ALJ recommended a $10, 000 civil penalty-$5, 000 for each violation.

         Robinson 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[2]-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[3] impose a $10, 000 civil penalty and also publicly censure and reprimand Robinson.

         This timely appeal followed.

         II

         We have 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).

         Our 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 120.68]."

          A

         In his 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 disagree.

         Section 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).

         Competent, substantial evidence supports the ALJ's implicit finding that Robinson acted corruptly.[4] 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 ...


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