Robert K. Robinson v. Commission on Ethics

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-2187
_____________________________
ROBERT K. ROBINSON,
Appellant,
v.
COMMISSION ON ETHICS,
Appellee.
___________________________
On appeal from the Commission on Ethics.
March 29, 2018
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
1 The concurring in part/dissenting in part opinion suggests
that the vote on the finding of probable cause was “closely-
divided.” But, even if that is true, it does not matter because all
that was needed for the Commission to find probable cause was a
majority vote. Thus, whether the vote was “five-four,”
unanimous, or something in between, the result is the same.
Moreover, in this case, any significance attributable to the vote-
count at the probable cause stage is eviscerated by the
2
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
Commission’s unanimous vote on the final order and public
report that occurred after the facts were fully developed.
3
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.
2 Commissioner Anchors—the “skeptical Ethics
Commissioner” referred to in the concurring in part/dissenting in
part opinion—commented prior to the vote that she shared some
of the concerns raised in Robinson’s exceptions, but she
nevertheless joined the vote to adopt the recommended order
because she correctly recognized that the Commission could not
overturn the ALJ’s findings under the applicable standard of
review. She explained:
I don’t think I can overcome the standard that we
have to be able to deviate from the administrative law
judge’s findings.
If I were an administrative law judge, I might have
had a different observation, but I think that they were
well articulated and well reasoned. They caused me
some pause, but I don't think I can meet the standard.
3 Where, as here, the Commission finds that a violation of
part III of chapter 112 has occurred, its “duty” is to “report its
findings and recommend appropriate action to the proper
4
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].”
disciplinary official.” § 112.324(8), Fla. Stat. The disciplinary
official—in this case, the Governor, see § 112.324(8)(d), Fla.
Stat.—is then responsible for imposing the penalty.
5
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
4 We summarily reject Robinson’s argument that the ALJ’s
failure to make an explicit finding that he acted “corruptly”
compels reversal because, as the Commission explained in the
final order and public report, that finding is implicit from the
other findings in the recommended order and the ALJ’s
determination that Robinson violated section 112.313(6).
6
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 mark-ups were
merely “suggestions” that the chairman was invited to make by
the town’s land planning consultant). In short, the evidence
establishes that Robinson misused his position as city attorney to
create an unfair advantage for himself and gain a personal
benefit.
The evidence further establishes that Robinson knew or
should have known that advising the city commission as city
attorney on a matter benefiting himself personally was
inconsistent with his public duties as city attorney because on
prior occasions involving similar circumstances he advised the
city commission to hire outside counsel. For example, in 2012,
when Robinson intended to bid on the city attorney contract, he
recommended that the city commission hire outside counsel on
the matter because any advice from him would be a conflict of
interest. Accordingly, in this case, Robinson’s failure to advise
the city commission to hire outside counsel when creating and
establishing the qualifications for the Zoning Hearing Officer and
Code Enforcement Special Magistrate positions—coupled with
his creating a sense of urgency in the appointments and giving
the city commissioners no other options—establishes that
Robinson knew or should have known that his actions were
wrong and unethical.
As can be seen from the characterization of the facts in the
concurring in part/dissenting in part opinion, the ALJ in this case
was presented with conflicting narratives about Robinson’s
eleventh-hour effort to obtain the Zoning Hearing Officer and
Code Enforcement Special Magistrate positions. Was it simply a
7
magnanimous gesture of a long-time and faithful public servant
motivated by the best of intentions, as Robinson contended? Or,
was it a “corrupt” act motivated by Robinson’s pecuniary self-
interest in preserving a portion of the income stream from the
City that he had enjoyed for the past 13 years, as the Commission
contended? It was the ALJ’s prerogative—as the fact-finder
charged with weighing and balancing the direct and
circumstantial evidence—to reject Robinson’s narrative and view
the evidence consistent with the narrative advocated by the
Commission. We do not have the authority to second-guess the
ALJ’s view of the facts where, as here, there is competent
substantial evidence to support that view. See § 120.68(7)(b), Fla.
Stat. (stating that “the court shall not substitute its judgment for
that of the agency as to the weight of the evidence on any
disputed finding of fact”).
In sum, because competent substantial evidence supports the
Commission’s finding that Robinson violated section 112.313(6),
we affirm that finding.
B
In his second issue on appeal, Robinson contends that the
Commission erred in finding that he violated section
112.313(16)(c) because the Commission misconstrued that
statute. We agree.
Section 112.313(16)(c) provides:
No local government attorney 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. A local
government attorney whose contract with the unit of
local government does not include provisions that
authorize or mandate the use of the law firm of the local
government attorney to complete legal services for the
unit of local government shall not recommend or
otherwise refer legal work to that attorney’s law firm to
be completed for the unit of local government.
8
(Emphasis added.)
The plain language of this statute prohibits two distinct
actions. The first sentence relates to dual-representation and
prohibits a local government attorney from representing a person
or entity before the local government for which the attorney
provides legal services. The second sentence relates to the
referral of additional legal work and prohibits a local government
attorney from referring legal work to his firm unless the
attorney’s contract with the local government authorizes or
mandates that the firm be used to complete the local
government’s legal work.
Here, Robinson was found to have violated the first sentence
of section 112.313(16)(c). The operative word in that sentence is
“represent,” which is defined to mean “actual physical attendance
on behalf of a client in an agency proceeding . . . .” § 112.312(22),
Fla. Stat. (emphasis added). The word “client” is not statutorily
defined, but according to the dictionary, 5 the word means “a
person who engages the professional advice or services of
another.” Client, M ERRIAM -W EBSTER D ICTIONARY ,
https://www.merriam-webster.com/dictionary/ client (emphasis
added); see also Client, B LACK ’ S L AW D ICTIONARY (6th Ed.
1990) (defining “client” as “[a]n individual, corporation,
trust, or estate that employs a professional to advise or
assist it in the professional’s line of work”).
The ALJ found that Robinson was representing himself or
his law firm when he persuaded the city commission to appoint
him as Zoning Hearing Officer and Code Enforcement Special
Magistrate. That finding is supported by competent substantial
evidence, so the resolution of the second issue on appeal boils
down to whether Robinson was representing a “client” when he
was representing himself or his law firm before the city
commission.
5 It is appropriate to refer to dictionary definitions to
ascertain the plain and ordinary meaning of terms that are not
statutorily defined. See Sch. Bd. of Palm Beach Cty. v. Survivors
Charter Schools, Inc., 3 So. 3d 1220, 1223 (Fla. 2009).
9
We are not persuaded that the term “client” should be
broadly construed to include Robinson’s representation of himself
or his law firm before the city commission under the
circumstances of this case.
First, this broad interpretation is inconsistent with the
longstanding interpretation of the statute reflected in the
Commission’s advisory opinions issued pursuant to section
112.322(3). In Opinion 17-18, for example, the Commission
opined that section 112.313(16)(c) prohibited the contracted
attorney for a local value adjustment board from representing
“another person or entity” before the board, but that it did not
prohibit the attorney from representing “[his] own interests as a
property owner” before the board. Op. Comm’n on Ethics 17-18
(Dec. 13, 2017) (available at http://www.ethics.state.fl.us/
Documents/Opinions/17/CEO%2017-018.htm). This opinion
relied on advisory opinions from 1978 and 1993 and explained
that “it is axiomatic pursuant to opinions of this Commission that
no public officer, employee, or local government attorney is
prohibited from appearing before any board in an individual
capacity as a private citizen, representing solely his or her own
interests.” Id. (citing advisory opinions 78-79 and 93-36).
Second, this broad interpretation would result in the first
sentence of section 112.313(16)(c) prohibiting conduct that is
expressly authorized by the second sentence of the statute.
Specifically, if the first sentence of the statute were construed to
preclude a local government attorney from representing himself
or his firm when seeking additional legal work from the local
government, then the second sentence of the statute—which
permits the attorney to refer legal work to his firm so long as the
contract with the local government allows him to do so—would be
a nullity.
We have a duty to construe statutes in a manner that gives
effect to all of their provisions. See Edwards v. Thomas, 229 So.
3d 277, 284 (Fla. 2017) (“[R]elated statutory provision must be
read together to achieve a consistent whole, and . . . ‘[w]here
possible, courts must give full effect to all statutory provisions
and construe related statutory provisions in harmony with one
another’” (quoting Quarantello v. Leroy, 977 So. 2d 648, 651-52
10
(Fla. 5th DCA 2008))). Accordingly, we reject the ALJ’s broad
interpretation of section 112.313(16)(c) in this case, and
consistent with the longstanding interpretation adopted by the
Commission in its advisory opinions, 6 we narrowly construe this
statute to only preclude the local government attorney from
representing a person or entity other than himself before the unit
of government to which the attorney provides legal services.
This does not mean that there are no ethical limitations on a
local government attorney’s referral of legal work to himself or
his law firm. Indeed, the second sentence of section
112.313(16)(c) prohibits such referrals unless they are authorized
or mandated by the attorney’s contract with the local
government, and section 112.313(16)(b) provides that the “the
standards of conduct in subsections (2), (4), (5), (6), and (8) [of
section 112.313] shall apply to any person who serves as a local
government attorney.” Accordingly, as happened in this case, a
local government attorney who is found to have misused his
position by “corruptly” obtaining legal work or other special
benefits or privileges for himself or his firm can be found guilty of
violating section 112.313(6).
In sum, because the Commission misconstrued section
112.313(16)(c), we reverse the Commission’s determination that
Robinson violated that statute.
C
In his final issue on appeal, Robinson contends that the
Commission abused its discretion by increasing the recommended
penalty to include a public censure and reprimand. We need not
resolve this issue because the Commission will need to reconsider
the recommended penalty based on our reversal of the portion of
the final order and public report finding that Robinson violated
section 112.313(16)(c). See Green v. Dep’t of Bus. & Prof. Reg., 49
6 The Commission’s advisory opinions are not binding on the
courts, but they are persuasive and entitled to due consideration.
See State v. Family Bank of Hallandale, 623 So. 2d 474, 478 (Fla.
1993) (explaining that opinions of the Attorney General are not
binding on the courts, but they are persuasive).
11
So. 3d 315, 319 (Fla. 1st DCA 2010) (reversing and remanding for
reconsideration of penalty based on reversal of several violations
on which the penalty was based). If, on remand, the Commission
decides again to increase the recommended penalty, it must
“stat[e] with particularity its reasons therefor in the order, by
citing to the record in justifying the action.” § 120.57(1)(l), Fla.
Stat.
III
In sum, for the reasons stated above, we affirm the
Commission’s finding that Robinson violated section 112.313(6),
but reverse its finding that he violated section 112.313(16)(c). We
remand the case to the Commission for reconsideration of the
penalty.
AFFIRMED in part; REVERSED and REMANDED in part.
KELSEY, J., concurs. MAKAR, J., concurs in part and dissents in
part with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
MAKAR, J., concurring in part, dissenting in part.
“No good deed goes unpunished” best describes this case, one
in which a trusted and well-respected attorney, who provided
“exemplary legal services” as city attorney to a rapidly-growing
Southwest Florida municipality for over a decade, is absolved of
every public ethics charge leveled against him but one: a claim
that he acted “corruptly” in a series of public meetings by
convincing the city commission to hire him on a limited,
terminable-at-will basis after his successor’s arrival. That charge,
like the other three inter-related ones brought against him,
should be invalidated.
12
Robert K. Robinson, as he transitioned from his long-held
position of outside city attorney for the City of North Port,
Florida, did two things relevant to this case. First, he and his law
firm—who had provided legal services to the City for almost
fourteen years under a broadly-written, full-service agreement—
made themselves available to the City during the two-week gap
before the arrival of the City’s new in-house city attorney. At the
vice-mayor’s direction, Robinson prepared a letter of engagement
for the City’s consideration that was ultimately approved by the
commission in public meetings.
Second, Robinson drafted ordinances creating a zoning
hearing officer and a code-enforcement special magistrate, both
to be contractually-awarded to outside legal counsel on a
terminable-at-will, hourly basis. The need for these positions had
been discussed previously, and they were supported by members
of the City’s governance. After public meetings on the proposed
ordinances, they passed by a four-one vote and, concurrently,
Robinson was hired for the positions, one of which had urgency
because a pending zoning matter required immediate attention
(the zoning board lacked sufficient members to take action and a
lawsuit had been threatened). Not long thereafter, Robinson and
his partners joined another private law firm, necessitating that
he resign from the hearing officer position in which he served for
just two weeks, resolving the pending zoning matter and one
other.
That didn’t close the chapter; instead, a new Kafkaesque one
emerged. An ethics complaint was filed against Robinson, which
was deemed legally sufficient to support an investigation,
resulting in a report upon which the Commission by a closely-
divided (five-four) vote found probable cause existed to believe
that Robinson committed four state ethics violations. Each of the
alleged violations arose from the identical conduct: Robinson
“providing counsel and recommendations to the City
Commission” as to the hearing officer ordinance and
“encouraging” the City Commission to replace its code
enforcement board with a special magistrate.
After much discovery and pre-hearing matters, a two-day
evidentiary hearing was held and the administrative law judge’s
13
recommended order concluded that two violations were proven
and two were not:
• Robinson did not violate Florida Statutes
section 112.313(3) (2014)—which prohibits
doing business with one’s own agency—
because section 112.313(16) lawfully permitted
him to do so as to the hearing officer/magistrate
positions.
• Robinson did not violate section 112.313(7)(a)—
which prohibits conflicting employment and
contractual relationships—because,
although he and his law firm had “an inherent
conflict” in concurrently representing the City
and “drafting or signing off on requirements for
the two new” hearing officer/magistrate
positions, they were permitted to do so by
statute such that they could: a) provide “all
nature of legal services to the City” under
section 112.313(16)(b); and b) were “specifically
permitted” to “have an employment 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 his public duties.”
• Robinson violated section 112.313(16)(c)—
which prohibits a local government attorney
from “represent[ing]” a private individual or
entity before the local government that employs
him—because he was representing himself and
his firm who would both “bec[ome] private
citizens as to the City” after their legal services
contract came to an end.
• Robinson violated section 112.313(6)—which
prohibits misuse of public position—because he
14
should have recommended, but didn’t, that the
City Commission hire outside counsel to handle
the hearing officer/magistrate discussions and
negotiations.
The Commission’s Final Report unanimously upheld the two
violations and this appeal ensued.
I agree that Robinson did not violate section 112.313(16)(c)
because his actions—assisting the City by offering interim legal
and hearing officer/magistrate services—did not amount to
representation of a “client” before the City under the
circumstances of this case. See § 112.312(22), Fla. Stat. (2014).
Neither Robinson nor his firm were representing a “client,” which
the definitional statute requires, such that the section
112.313(16)(c) violation must be vacated.
But I fail to see how Robinson can be said to have acted
“corruptly” in violation of section 112.313(6) as to the hearing
officer/magistrate positions under the circumstances presented.
As next discussed, (a) he and his law firm were exempt from
ethics laws related to “doing business” and having “conflicting
employment/contractual relationships” with the City, (b) he did
nothing inconsistent with the proper performance of his public
duties, and (c) his actions were not done with “corrupt” intent.
First off, Robinson and his firm were exempt from ethics
laws against “doing business” and having “conflicting
employment/contractual relationships.” Robinson was the outside
city attorney at the time the hearing officer/magistrate positions
were first discussed, and later proposed and approved. By law,
both Robinson and his law firm were statutorily exempt from the
prohibition on “doing business with one’s agency,” § 112.313(3),
Fla. Stat., and had statutory authority to provide comprehensive
legal services and have an employment relationship with the City
that conflicted with “his private interests and the performance of
his public duties” (or impeded the latter). Section 112.313,
subsection (16)(b) states:
(b) It shall not constitute a violation of subsection (3)
[doing business with agency] or subsection (7)
15
[conflicting employment or contractual relationship] for
a unit of local 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 government.
(Emphasis added). The italicized portion says that a local
government lawyer (like Robinson) and his law firm have broad
authority to provide “any or all legal services” to a local
government without fear of an ethics violation for “doing business
with one’s agency” or having a “conflicting employment and
contractual relationship” so long as “the local government
attorney is not a full-time employee or member of the governing
body of the unit of local government.” Id. Robinson did not meet
this latter description, thereby authorizing him and his law firm
to do what they had done for over thirteen years: to make
themselves fully available for any and all legal services the City
might deem appropriate. This would include the “gap-filling”
services Robinson and his law firm provided as well as the
limited terminable-at-will services at issue. Nothing in the
statutory language gave notice that either of these contracts was
other than lawful.
Second, and on a similar note, Robinson did not act
“corruptly” under section 112.313(6) because he didn’t misuse his
position by acting inconsistent with his public duties nor did he
act with wrongful intent. Local government attorneys—though
shielded from “doing business” and having “conflicting
employment/contractual relationships” with their agencies—are
subject to the standards of conduct in section 112.313(6), which
says that no public official “shall corruptly use or attempt to use
his or her official position or any property or resource which may
be within his or her trust, or perform his or her official duties, to
secure a special privilege, benefit, or exemption for himself,
herself, or others.” § 112.313(6), Fla. Stat. The word “corruptly”
is defined to mean “done with a wrongful intent and for the
16
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.” § 112.312(9), Fla. Stat. (emphasis added).
As next discussed, the highlighted portions were not met as to
Robinson for a number of inter-related reasons.
Taking the latter language first, nothing establishes that
Robinson acted inconsistent with the proper performance of his
public duties in violation of law. No municipal code or state
procurement law is alleged to have been violated; and no claim is
made that the Commission was prohibited by law from
contracting with Robinson directly for his services. Nor is
Robinson’s drafting of the ordinances as the City’s attorney
alleged to be impermissible under the municipal code; indeed, he
fully assisted in the transition in a positive and constructive way.
And, as just discussed, section 112.313(16)(b) gave the City much
leeway in its procurement of “any or all” of Robinson’s legal
services.
What’s left is the narrow claim that Robinson was required
to suggest that the City hire and pay outside legal counsel to
oversee and handle procurement of the hearing officer/magistrate
positions to avoid a potential appearance of a conflict of interest
because he had suggested such an arrangement when his firm
expected to bid for the comprehensive, full-service legal services
contract in 2012. At his suggestion, outside counsel was brought
in, a competitive bid process was used, and Robinson’s firm won
the full-service contract in 2012. By failing to suggest the same
type of arrangement for the procurement of the far more limited
hearing officer/magistrate positions, Robinson is thereby deemed
“corrupt” and acting inconsistent with public duties.
But that stretches the facts and law way too far. The factual
findings, at best, establish that the situation could have been—
not must have been—handled differently, making it important for
someone in Robinson’s position to have reason to be on notice
that his conduct would be deemed “corrupt” and unlawful. On
this point, our Court said long ago that the requirement of
“corrupt” intent under subsection (6) includes a “reasonable
notice” component:
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the statutory requirement that appellant acted with
wrongful intent, that is, that she acted with reasonable
notice that her conduct was inconsistent with the proper
performance of her public duties and would be a
violation of the law or the code of ethics in part III of
chapter 112.
Blackburn v. State, Comm’n on Ethics, 589 So. 2d 431, 434 (Fla.
1st DCA 1991) (emphasis added). But no factual findings nor
legal authority establishes that an attorney in Robinson’s
position would be on notice that offering his services on such a
limited basis was “inconsistent with the proper performance” of
his public duties and a violation of state ethics laws under the
specific facts presented. To the contrary, offering his legal
services was consistent with the City’s lawful procurement of “any
and all” legal services from both him and his law firm; and it was
lawful, and not an ethics violation, under the broad legal services
contract that was in place. § 112.313(16)(b) & (c), Fla. Stat. And
the evidence irrefutably shows he was acting consistent with the
commission’s best interests, as clearly expressed and ratified by
the commissioners themselves at their many public meetings on
the topic.
Similarly, he was not on “reasonable notice” that it was
illegal for him to fail to suggest that the city commission hire
outside counsel to handle the hearing officer/magistrate
discussions and negotiations. Yes, he had suggested that the City
hire outside counsel in 2012 when the entirety of the City’s legal
services were up for bid, which was prudent (though not required
by any procurement law cited in this case); but that situation is
far different from the limited procurement of terminable-at-will
hearing officer/magistrate services at issue in this case. The best
practice for comprehensive, full-service multi-year contracts may
be that a city attorney should suggest the hiring of outside
counsel to handle the procurement independently, as Robinson
proposed in 2012, if the incumbent city attorney expects to bid.
But nowhere is it written that a municipality must always hire
and pay outside counsel to prepare ordinances and oversee
procurement of attorney services no matter their size or scope;
the cost of hiring outside counsel could easily exceed the budget
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for the legal services to be procured, as would have been the case
here. Plus, the commission was aware of the outside counsel
option—they had just used it in 2012—and they chose to reject it
along with options a dissenting commissioner wanted.
At most, a sliding scale of “best practices” exists as to what
ought to be done generally when legal services are procured,
particularly given the statutory protection that attorneys—like
Robinson—get from ethics charges that they did business with
their own agency or had conflicting employment or contractual
relationships. § 112.313(16), Fla. Stat. On this point, the factual
findings suggest various measures of prudence that persons in
Robinson’s position may wish to consider; but not a single factual
finding was made, nor legal authority cited, that supports the
necessary conclusion that Robinson acted with “reasonable
notice” that his conduct “was inconsistent with the proper
performance of h[is] public duties and would be a violation of the
law or the code of ethics in part III of chapter 112.” Blackburn,
589 So. 2d at 434.
Third, it is equally apparent that Robinson did not have the
wrongful intent that section 112.313(6) requires. Tellingly, the
administrative law judge made no specific factual findings as to
Robinson’s “wrongful intent” or whether he acted “corruptly,”
which must be established by clear and convincing evidence
because of the momentous negative impact an ethics violation
imposes on a public official’s reputation and station in life.
Latham v. Florida Comm’n on Ethics, 694 So. 2d 83, 86 (Fla. 1st
DCA 1997) (requiring heightened evidentiary standard because of
the punitive nature of sanctions, such that “the bearer of an
officially-administered stamp of corruption, may find loss of
livelihood among the least of his worries. The wake of such
censure can easily sweep away business and political ambitions,
station in the community, and the respect and love of family and
friends.”). The administrative law judge was the only person who
heard the testimony and viewed the evidence (the Commission
merely reviewed his proposed findings and conclusions), yet no
direct factual findings were made on a critical, dispositive
element of the claimed offense: corrupt intent. This omission is
next to incurable because it leaves an evidentiary hole that
cannot adequately be filled by mere inference or conjecture of
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“corrupt intent” via the Commission’s secondhand review of the
paper record.
Indeed, the “factual findings of the administrative law judge,
which were adopted by the Commission, contradict the conclusion
that Appellant acted corruptly.” Bennett v. Comm’n on Ethics,
871 So. 2d 924, 926 (Fla. 5th DCA 2004). The administrative law
judge’s findings paint a portrait of Robinson as an exceptionally
skilled and trusted attorney who had acted properly for his entire
time as city attorney. Aside from the hearing officer/magistrate
positions, no claim is made that Robinson—a thirty-year
practicing attorney, board-certified in city, county, and local
government law—was anything other than exceptionally well-
qualified for the comprehensive scope of complex local
government services for which he was hired. The administrative
law judge found, and no one disputes, that Robinson provided
“exemplary legal services” to the City for almost fourteen years
and was “trusted” and well-respected. He further found that
Robinson believed he was representing the City’s interests and
did not “impede or frustrate the City Commission’s move to an
appointed City Attorney.” To the contrary, Robinson “assisted the
City in its search for an in-house City Attorney by recommending
a search firm [for the new city attorney], and by speaking
positively about the transition to the in-house situation.”
Robinson’s actions can be seen as entirely consistent with the
commission’s overall game plan, which was to hire a new in-
house city attorney with a smooth transition provided by
Robinson and his firm. That Robinson offered himself for the
positions is a non-starter because he was ideally suited to
continue handling the limited and pressing City matters due to
his superior knowledge and experience, just as he and his firm
were ideally suited to bridge the transition to the in-house city
attorney; all but one commissioner concurred in the need and cost
effectiveness of using Robinson.
Four of the five city commissioners voted for the ordinances
after a series of public meetings and discussions. They concluded
that Robinson’s services under the terminable-at-will, hourly
positions were appropriate and necessary. The City—having used
outside counsel in the 2012 procurement—could have chosen to
do so here, assuming they were inclined to spend public money
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for whatever marginal benefit it might produce. Instead, only one
of the commissioners—who was newly elected and had become
Robinson’s constant critic—wanted to put off the matter and seek
alternatives. The four other commissioners were sufficiently
satisfied with the matter to vote for it without further ado. Who’s
to say they exercised less than independent judgment under the
circumstances? No evidence suggests that Robinson had
Svengali-like sway over the four commissioners, or that he duped
or hornswoggled them. As one skeptical Ethics Commissioner
queried, could it truly have been “a complete shirking of the
independent functional brain capacity of those commissioners
who made a decision to consider whether there could have been
other alternatives and whether they really wanted to accept his
offer?” Answer: No. A review of the videotapes and transcripts of
the commission meetings, at which the super-majority repeatedly
rejected efforts by the dissenting commissioner to delay the
process or consider alternatives, makes clear they exercised
independent judgment and engaged in extensive discussion and
debate. To conclude that Robinson “acted corruptly under these
facts, therefore, is erroneous.” Bennett, 871 So. 2d at 926.
On this same point, it bears emphasis that Robinson’s
actions were on full public display at the commission’s open
meetings. Those videotapes show that Robinson’s actions were
plainly and collegially done to assist the City in its transition to
an in-house city attorney and to meet a pressing need (the zoning
matter) that could be met with his unquestioned and trusted
legal abilities (much is made that Robinson offered his services at
the “eleventh hour” but the urgency of the need was never in
doubt). No claim is made that any public meeting laws were
breached; all actions and statements at issue in this matter
occurred in public fora and were set forth in public documents.
Nothing was hidden from view; everything was done above-board;
and no secretive or clandestine tactics were used. Rather than
acting “corruptly” in full view of the public, Robinson’s actions—
as confirmed by the factual findings—reflect no wrongful intent
whatsoever.
Finally, it bears noting that subsection (6) targets genuinely
egregious public misconduct, not simply partisan grievances or
personal disagreements with a public official. In this regard, the
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case against Robinson has parallels to the subsection (6) violation
that the Fifth District reversed in Siplin v. Comm’n on Ethics, 59
So. 3d 150, 152 (Fla. 5th DCA 2011), which held that
“[s]ubstantial competent evidence does not support the
administrative law judge’s factual findings, which were adopted
by the Commission, concluding that Siplin acted ‘corruptly.’” The
ethics charge against Siplin was that he used his official position
as a state senator to “‘bully’ [a deputy] into letting him access the
parking lot through a barricaded route.” Id. In exonerating
Siplin, the Fifth District concluded that no evidence established
that he acted “corruptly,” stating also that the Commission could
“point[] to no law or ethics code that prohibited Siplin from
asking to go through the barrier.” Id. Likewise, the evidence here
falls far short of establishing that Robinson acted “corruptly,”
there being no law or ethics code that prohibited Robinson from
assisting the City in proposing and providing the hearing
officer/magistrate services under the circumstances presented.
***
In summary, the evidence fails to demonstrate that Robinson
acted corruptly as statutorily-defined in section 112.313(6). No
evidence shows that he had reasonable notice that his actions
were inconsistent with his public duties or a violation of law
under the circumstances. Punctuating this conclusion is that
Robinson’s conduct violates none of the other public ethics laws
related to the procurement of legal services. Each of the four
claims that Robinson violated ethics laws—all arising from the
identical set of facts—should be dismissed, lest what can
reasonably be viewed as an entirely lawful and mutually-
advantageous procurement matter is transformed into a “corrupt”
“misuse of power” under subsection (6).
____________________________
Mark Herron and Robert J. Telfer of Messer Caparello, P.A.,
Tallahassee for Appellant.
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Pamela Jo Bondi, Attorney General, and Elizabeth A. Miller,
Assistant Attorney General, Tallahassee for Appellee.
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