Complaint No. 90-86

          Respondent.                                         DOAH CASE NO.: 91-3367EC






     This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on November 27, 1991 by the Division of Administrative Hearings (a copy of which is attached and incorporated by reference).  The Hearing Officer recommends that the Commission find that the Respondent violated Sections 112.313(8) and 112.3141(1)(c), Florida Statutes, and Section 8(e), Article II, of the Constitution of the State of Florida.  Respondent filed exceptions.


     Having reviewed the Recommended Order, the Respondent's exceptions, and the record of the public hearing of this complaint, and having heard the arguments of counsel for the Respondent and the Commission's Advocate, the Commission makes the following findings, conclusions, rulings and recommendations: 


Rulings on Respondent's Exceptions


     1.  The Respondent excepts to the Hearing Officer's Conclusion of law in the Recommended Order numbered "B. 2."  Although the Respondent's summary of this conclusion states, "That conclusion may be summarized as holding that Mr. Langton violated the `Sunshine Amendment,' Section 8(e) Article II of the Florida Constitution, and the Code of Ethics for Public Officers and Employees, Section 112.3141(1)(c), Florida Statutes," that conclusion is actually summarized in the Recommended Order as follows:  "Based upon the foregoing, it is concluded that the Parmer Call, the Frohock Contact, the Meeting, the Burnside Contact, the Ganson Contact, the Pelham Contact and the Jones Contact all constituted representation by the Respondent on behalf of another person or entity."  (Recommended Order, page 47).  The Respondent appears to be excepting to the Hearing Officer's conclusion that the Respondent's contacts with DCA constituted "representation" of another person or entity.


     Particularly, the Respondent argues that "representation" by the Respondent was dependent on the Respondent having a "client," and that, consequently, the Hearing Officer improperly broadened the meaning of the quoted terms in concluding that the Respondent's wholly owned corporation was the person or entity he represented before the DCA.  Further, the exception argues that the Hearing Officer improperly relied on CEO 81-24 in making his conclusion.


     As was pointed out by the Hearing Officer, the statutory definition of "represent" found in Section 112.312(17), Florida Statutes, must be considered in terms of the express language of the Constitutional section and statutory section prohibiting representation; the terms "person" and "entity" found therein clearly encompass fictitious persons and business entities such as Langton Associates, Inc.--the Respondent's wholly-owned corporation.  If the Legislature had intended to restrict what would constitute "another person or entity" to a possible subclass that would include only "clients," it would have done so by defining "another person or entity" rather than by defining the term "represent."  The term "represent" initially was defined for purposes of the quarterly "client" disclosure requirements of section 112.3145, Florida Statutes, in 1975, well before the Constitutional or statutory prohibitions at issue here.  Further, the term "client," under its plain and ordinary definitions, has broader meaning than that given it by way of example in CEO 81-24.  In addition, it is well settled under corporate law that, with rare exception, a corporation is a separate legal entity or legal person from the natural person who owns or incorporates it.  Moreover, in addition to recognizing the distinction between a corporate entity and its owner for purposes of finding a violation of the Code of Ethics or a prohibited conflict thereunder, we have recognized that distinction in exonerating respondents or in not finding prohibited conflicts.  See, for example, CEO 91-7, wherein we found that a school board member would not be in violation of Section 112.313(7), Florida Statutes, were his corporation to contract with a business entity which was doing business with the school board.  Also, the statutory definition of "represent," to the extent, if any, that that definition will not support a finding of representation under the Constitutional section charged in this matter, was only made applicable to the Constitutional setion by Chapter 91-85, Laws of Florida, and thus was not applicable at the time of the Constitutional violations found herein.


     The Respondent further argues, regarding the Hearing Officer's conclusion that the contacts with DCA constituted "representation," that in order for an entity to be represented before a state agency that entity must have an interest before the agency, and that neither Langton Associates, Inc. nor the local governments to which it provided services had an interest before DCA.


     There are findings of fact made by the Hearing Officer based upon competent, substantial evidence that would support a conclusion that Langton Associates, Inc. and the local governments to which it provided services had interests before DCA, including findings of fact 82, 88, 89, 70, 71, 90, 91, 92, 93, 114b, 117, 118, 125b, 130, and 140.


     Regarding the Respondent's argument that "Langton Associates, Inc., and Michael E. Langton are, but for a ministerial statutory corporate filing, one and the same," it is noted, as previously stated in the response to this exception, that a wholly-owned corporation can be a separate entity for purposes of the law relating to representation before State agencies.  In addition, the Hearing Officer specifically concluded that some, although not all, of the Respondent's contacts with DCA were made on behalf of clients of Langton Associates.


     Additionally, the Respondent argues that the case of Blackburn v. State of Florida, Commission on Ethics, 18 FLW 02894 (1st DCA, November 15, 1991), would prevent a conclusion that the Respondent violated the Constitutional and statutory representation provisions at issue herein, unless the activities under scrutiny were for the sole purpose of violating those provisions.


     Blackburn is inapplicable to the Respondent's representation charges because it involved a local government official accused of misuse under Section 112.313(8), Florida Statutes, a far different provision than those at issue for the Respondent, and because the Blackburn court specifically limited its holding to the facts of that case.  A finding by us that a Legislator could escape the proscriptions of Section (8)(e), Article II of the State Constitution, and Section 112.3141(1)(c), Florida Statutes, by relying upon a supposed legislative purpose for all of his contacts with State agencies would only serve to strip those provisions of all meaning and significance.


     Further, our Public Report in In Re JOHN RENKE, Complaint No. 88-52, cited by the Respondent, is inapplicable to the Respondent's situation because in that matter we found that there was no probable cause to believe that Representative Renke's representation had been "for compensation."  In contrast, in the matter currently before us, the Hearing Officer has found, based upon competent, substantial evidence, that the Respondent's representation was compensated.


     Therefore, the Respondent's exception numbered "1" is rejected.


     2.  The Respondent excepts to the Hearing Officer's Conclusion of Law numbered "C.2.a." by arguing that the Hearing Officer fails to identify the special privilege, benefit, or exemption which was sought by the Respondent.  Such argument is contrary to the language of the cited conclusion which states:  "The benefit that the Respondent sought during these contacts was the award of a CDBGP contract to clients of Langton Associates and, more importantly, the removal of the appearance that Langton Associates had made a mistake in following the Department's instructions during the 1988 funding cycle."  In addition, there are findings of fact based upon competent, substantial evidence which support the conclusion.


     The Respondent also argues that the conclusion of law deals with an issue (the Respondent's communication style) which was not at issue in this matter, and, thus, any references to or treatment of the Respondent's communication style in the Recommended Order is a deviation from the essential requirements of law.  However, the conclusion is not phrased in terms of a determination as to the Respondent's communication style, but, rather, is phrased in a manner which addresses the elements of Section 112.313(8).  Further, threats, communication, or communicative action by the Respondent can form the evidential basis upon which the findings of fact and conclusions of law of the Recommended Order are based.


     The Respondent's argument citing the Blackburn decision is inapplicable to the determination of the Hearing Officer that the Respondent violated Section 112.313(8), Florida Statutes, as well as being inapplicable to the representation sections as stated above.  To begin with, the Blackburn court specifically limited its holding to the facts of that case.  Further, unlike Blackburn, where the issues involved general political concern over a garbage collection ordinance and its affect on the office-holding fortunes of a public officer, the instant matter involved the Respondent's use of his public position as a State Legislator in attempts to have public employees of an executive branch department take actions which would have the effect of specifically advancing the monetary and business interests of the Respondent's company and the clients which it served.  Such interests do not equate with the incidental campaign benefits to the county commissioner in Blackburn.  In addition, Blackburn's language and discussion regarding lack of notice of proscribed conduct is inapplicable to the Respondent because his requesting and receiving a formal ethics opinion from the Commission regarding representation before State agencies (CEO 85-83) shows that he was aware that he might be crossing ethical boundaries.


     Therefore, the Respondent's exception numbered "2" is rejected.


     3.  The Respondent takes exception to all of Section D (the portion of the Recommended Order which discusses the issue of penalties against the Respondent) of the Recommended Order, arguing that since the Commission has no authority to seek punishment of a member of the Legislature, penalty comments in the Recommended Order should be rejected by the Commission.


     To the extent that the issues here involve Article II, Section 8(e), Florida Constitution, the Commission has the authority under Article II, Section 8(f), Florida Constitution, to investigate and render a public report that includes conclusions of law regarding whether a violation has been committed.  That public report is not binding on the Legislature; nor does it commence official action for discipline or seek to punish a member of the Legislature.  Florida Commission on Ethics v. Plante, 389 So.2d 332, at p. 337 (Fla. 1979).  Therefore, the Commission does not have the authority under the Constitution to recommend a penalty for a violation of the Constitutional prohibition here.


     Violations of the Code of Ethics are penalized in accordance with the procedures specified in Section 112.324, Florida Statutes.  Section 112.324(3) provides that when the Commission finds that a member of the Legislature has committed a violation, the Commission shall forward its findings to the President or Speaker, as appropriate, for referral to committee for investigation and action.  That subsection specifically states:  "Upon request of the committee, the commission shall submit a recommendation as to what penalty, if any, should be imposed."  Therefore, the Commission is not empowered to recommend a penalty for any statutory violation at this stage of its proceedings.


     Accordingly, as any penalty discussion is at least premature, the Respondent's exception or objection numbered "3" is accepted.


     4.  The Respondent takes exception to the Recommended Order, arguing "that it fails to adequately address the significant issue of cases of this nature being based upon circumstantial evidence and the associated necessity of determining that all reasonable hypotheses contrary to the Findings of Fact and Conclusions of Law must be dispelled," and arguing further that, "[t]here is no competent substantial evidence which directly demonstrates Mr. Langton actually said he was making contact with DCA personnel on behalf of his firm or its clients or that he specifically requested any action be taken as to those entities."


     There is no requirement that it be proven that a Respondent actually made a conclusory statement admitting that he engaged in activity which could form the evidential basis of certain elements of ethics offenses.  Elements of offenses can be proven by the totality of the evidence as weighed and interpreted by the Hearing Officer.  All of the findings of fact contained in the Recommended Order which deal with elements of the offenses are based upon competent, substantial evidence.  In addition, there is no requirement that the Recommended Order engage in an exhaustive discussion of circumstantial evidence.


     Therefore, the Respondent's exception numbered "4" is rejected.


     5.  The Respondent takes exception to the Recommended Order "for its failure to adequately address the crucial issue of the standard of proof that must be met in proceedings before the Commission on Ethics."


     Since the Hearing Officer determined that the evidence met both the "preponderance of the evidence" standard and the "clear and convincing evidence" standard, it is not necessary for the Commission to determine which standard applies.  Further, since the Commission's action in this matter can constitute only a public report and not the imposition of an actual penalty or punitive sanction, and since any disciplinary action by the Legislature against the Respondent following such a public report would not consist of the Respondent's loss of a professional license, the preponderance of the evidence standard, which has been used in all previous matters before the Commission, is the proper standard of proof.


     Therefore, the Respondent's exception numbered "5" is rejected.


     6.  The Respondent apparently takes exception to the Hearing Officer's not considering and not basing findings of fact on Advocate's Exhibit 18B (the sworn statement of Wanda Jones given to an assistant state attorney), after it was admitted into evidence by stipulation of the parties, due to the exhibit being hearsay not within any exception to the hearsay rule.


     While hearsay evidence is admissible in proceedings under Chapter 120, Florida Statutes, findings of fact cannot be supported by hearsay alone.  See Section 120.58(1)(a), Florida Statutes.  Further, in his Recommended Order, the Hearing Officer does not state that he did not consider the exhibit; his order provides only that "Advocate's exhibits 18A and 18B are hearsay not subject to any exception to the hearsay rule.  No findings of fact have been based upon these exhibits."


     Therefore, Respondent's exception numbered "8" is rejected.


     7.  The Respondent takes exception to the Hearing Officer's reference to a telephone call between the Respondent and Mr. Parmer, pointing out that the reference appears to be an inadvertent error wherein the Hearing Officer intended to refer to the telephone call from the Respondent to Mr. Yeatman.


     Since the Advocate for the Commission agrees with the Respondent's representation of this misstatement by the Hearing Officer, the matter does not appear to be in controversy.  Therefore, this exception is granted and the references to the "Parmer call" on pages 46, 47, and 49 of the Recommended Order are hereby corrected to refer to the telephone call between the Respondent and Mr. Yeatman.


     8.  The Respondent takes exception to all findings of fact and conclusions of law which hold that the purpose of the Respondent's contacts with the DCA was the furtherance of his business interests, arguing that the conclusions and findings are based upon Advocate's Exhibit Number 4 which, the Respondent argues further, was admitted into evidence by the Hearing Officer over his objection that the exhibit contained opinions and conclusions which infringed upon the province of the Hearing Officer.


     This exception is rejected because the findings of fact to which the Respondent takes exception are all based upon competent, substantial evidence.


     9.  Since the Respondent did not separate or particularly identify his exceptions as being directed to findings of fact, versus conclusions of law, it has been difficult to apply the standards of review provided in Chapter 120, Florida Statutes, to the Respondent's exceptions.  Recognizing that the Recommended Order also may contain findings of fact that are designated under conclusions of law, however, it is the Commission's determination that, except as otherwise expressly stated in this Final Order and Public Report, there is competent, substantial evidence for the Hearing Officer's findings of fact and that the Hearing Officer's conclusions of law reflect a proper understanding and application of the Constitutional and statutory provisions involved.


Findings of Fact


     The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.


Conclusions of Law


     1.  The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference except as modified above.


     2.  Accordingly, the Commission on Ethics finds that the Respondent, Michael E. Langton, as a State Representative, violated Section 8(e), Article II, Constitution of the State of Florida, and Sections 112.3141(1)(c) and 112.313(6), Florida Statutes, as described herein.


     ORDERED by the State of Florida Commission on Ethics meeting in public session on Friday, January 24, 1992.


                           January 28, 1992





                           Dean Bunch






Mr. Mark Herron and Mr. Jeffrey H. Barker,

Attorneys for Respondent


Ms. Virlindia Doss, Commission Advocate


Mr. Paul D. Harvill, Complainant

Division of Administrative Hearings