STATE OF FLORIDA
COMMISSION ON ETHICS
In re JAMES R. ENGLISH, )
Respondent. ) Complaint No. 92-25
) Final Order No. COE ____
This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on November 19, 1993 by the Division of Administrative Hearings' Hearing Officer. The Hearing Officer recommends that the Commission issue its public report and final order finding that Respondent violated Sections 112.313(3) and 112.313(7)(a), Florida Statutes. She also recommends a penalty of $5,000.00 restitution and $10,000.00 civil penalty, for a total of $15,000.00. In a December 1, 1993 order rendered on December 9, 1993, the Commission Chairman granted Respondent's request until December 22, 1993 to file exceptions to the Recommended Order. The Respondent filed his exceptions on December 28, 1993. The Commission Advocate filed a Motion to Strike the Respondent's Exceptions as being untimely filed and the Respondent has filed his Response.
Having reviewed the Recommended Order, the Commission Advocate's Motion to Strike Exceptions, the Respondent's Response to Motion, the Respondent's Exceptions, and the record of the public hearing of this complaint, and having heard arguments of counsel for the Respondent and the Commission's Advocate, the Commission makes the following findings, conclusions, rulings, and recommendations:
STANDARDS FOR REVIEW
Under Section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987). Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).
The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the Commission is bound by that finding.
RULING ON THE COMMISSION ADVOCATE'S MOTION
TO STRIKE RESPONDENT'S EXCEPTIONS
Commission Rule 34-5.022(2), F.A.C., permits the Respondent and the Commission Advocate 15 days after receipt of the Recommended Public Report to file exceptions. By letter addressed to the Commission's Executive Director dated December 1, 1993, Respondent requested an extension of time to file exceptions. The basis of his request was that he and his Attorney would be out of town for the Thanksgiving Holidays through November 28, 1993 thereby leaving insufficient time "to meet, plan, and formulate exceptions" prior to the time when they would be due. By Order of the Commission Chairman, the Respondent's request was granted and he was ordered to file his exceptions on or before December 22, 1993. The term "filed," when used to denote a limitation period, is a legal term generally understood to mean that the agency must receive the matter required no later than the date stated. See Environmental Resource Associates of Florida v. State, Departmental of General Services, 624 So. 2d 330, 332 (Fla. 1st DCA 1993). Respondent's exceptions were filed with the Commission on December 28, 1993--six days after they were due. On December 20, 1993, Respondent's attorney wrote to the Commission asking for a one-month postponement of the final hearing. This was received on December 22, 1993 and was denied by letter dated December 22, 1993.
Upon consideration of the pleadings and arguments of the Commission Advocate and the Respondent, we hereby deny the Commission Advocate's Motion to Strike the exceptions.
1. Respondent excepts to the Hearing Officer's denial of his Motion to Supplement Record Exhibits. Respondent argues that R 11 is incomplete on its face. However, we note that while Respondent was identifying this exhibit (Tr. p. 34), the Commission Advocate interrupted Respondent's testimony stating:
Excuse me. If I could interrupt, an objection that just for clarity of the record, if I could state that the report that Mr. English is referring to I believe is attached to Advocate's Exhibit 21. It's a report entitled "City Attorney Organizational Structure," just so you'll all know when the transcript comes out what that is there. I hope that is helpful.
[Tr. pp. 35-36] The Commission Advocate put Respondent on notice at that time that he was offering an incomplete exhibit. The complete exhibit, however, was incorporated in Exhibit A 21, which had already been offered and accepted into evidence (Tr. p. 7). Although he did not seek permission to supplement the record at the time that he was informed that his exhibit was incomplete, Respondent argues that the Hearing Officer erred in denying his motion to supplement the record.
In addition, contrary to Respondent's representation that his Motion was unopposed, Respondent merely represented in his motion to the Hearing Officer that he did not expect any objection from the Advocate. He apparently did not comply with Fla. Admin. Code Rule 60Q-2.016 and confer with the Commission Advocate prior to filing his motion so that he could represent to the Hearing Officer whether the Advocate, in fact, had any objection to his motion.
Inasmuch as the hearing already had been completed and the exhibit that Respondent wished to supplement the record with already was in the record as an exhibit, the Hearing Officer did not abuse her discretion in denying Respondent's motion. Therefore, Respondent's exception is rejected.
Rulings on Respondent's Exceptions to Findings of Fact
2. Respondent excepts to the Hearing Officer's use of the word "Code" in paragraph 1 (on page 2 of the Recommended Order). He asserts that the proper word is "Charter." Inasmuch as Respondent's exception speaks to a technical error in wording rather than a substantive change in the Hearing Officer's Finding of Fact No. 1, and inasmuch as the record of the hearing supports the Respondent's contention, Respondent's exception is accepted.
3. Respondent excepts to the Hearing Officer's use of the phrase "full-time city attorney" in paragraph 2. He argues that the proper choice of words would be "in-house city attorney" to reflect the reality of the situation. Respondent's exception is rejected.
As stated by the court in Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985):
It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence. State Beverage Department v. Ernal, Inc., 115 So. 2d 566 (Fla. 3d DCA 1959). If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other.
It is not our function to reweigh the evidence or to rewrite the Hearing Officer's finding as long as there is competent substantial evidence to support the findings, as there is here.
Additionally, Respondent's proposed change would change the meaning of the paragraph. Here, the Hearing Officer was referring to the change in 1984 whereby, although he remained a partner in his law firm, Respondent became a salaried employee of the City restricted from working on any other matter but City matters excepting as permitted under his contract with the City.
4. Respondent excepts to the Hearing Officer's inclusion of the letter "A" as Respondent's middle initial. Inasmuch as the record supports Respondent's claim that Respondent's middle initial is "R.", Respondent's exception is accepted.
5. Respondent excepts to what he characterizes as the Hearing Officer's "abbreviated recitation of facts" leading up to Respondent's appointment as City Attorney in paragraphs 6 and 7 of the Recommended Order. Respondent argues that the record contains uncontradicted evidence critical to the Respondent's main defense that it was the City (and especially Commissioner Carol Bellamy) that initiated the 1984 change in delivery of services, and that the idea of employing a private attorney full-time and also retaining the services of the attorney's law firm was proposed by Ms. Bellamy and others long before Respondent was appointed to his office.
For the reasons stated in paragraph 2 above, Respondent's exception is rejected. It is the function of the hearing officer to resolve conflicts, to judge credibility of witnesses, to draw permissible inferences from the evidence, and to reach ultimate findings of fact based on competent substantial evidence. It is not our function to reweigh the evidence as long as there is competent substantial evidence to support the Hearing Officer's findings as there is here. Inasmuch as the Hearing Officer fulfilled her function of weighing the evidence, judging the credibility of the witnesses, and drawing permissible inferences from the evidence, we are not free to supplement her findings. As the Court stated in Manasota 88, Inc. v. Tremor, 545 So. 2d 439 (Fla. 2d DCA 1989):
Agency fact-finding independent of and supplementary to D.O.A.H. proceedings has been specifically disapproved. See e.g. Friends of children v. Department of Health and Rehabilitative Services, 504 So. 2d 1345 (Fla. 1st DCA 1987).
6. Respondent excepts to what he characterizes as the Hearing Officer's failure to include "relevant" facts in paragraph 9 of her Recommended Order. Respondent argues that the record contained "conclusive evidence of the City's clear intent to adopt Ms. Bellamy's 1981 idea as an option in the search for a 'new relationship'" with the City Attorney. For the reasons stated in paragraphs 2 and 5 above, Respondent's exception is rejected. It is not for us to reweigh the evidence when there is competent substantial evidence of record to support the Hearing Officer's finding.
7. Respondent excepts to the Hearing Officer's statement in Paragraph 10 of her Findings of Fact that "detailed analysis of the legal department's scope of work (was) derived from three months of city attorney's time slips." (Emphasis supplied.) Respondent argues that the evidence clearly shows that the detailed evidence included a complete review of all assistant city attorney's time slips and all billings from other law firms doing other legal work for the city, not just Mr. English's personal time slips. Respondent's exception is rejected as there is competent substantial evidence of record to support the Hearing Officer's Finding. See Advocate's Exhibit A 21 (Table II - Special Notes).
8. Respondent excepts to the Hearing Officer's alleged failure to include what he characterizes as "relevant facts" in paragraph 11 of her Findings of Fact establishing the degree to which Commissioner Bellamy went to salvage some portion of her oft-repeated desires and plans to require the city attorney to be a full-time salaried employee of Tallahassee. Respondent argues that, "having chaired the task force only to find that the 'status quo' was much better, cheaper and more efficient than the alternative pure in-house plan, Bellamy returned to her original (1981) idea whereby the City Attorney would be a member of a firm and also be employed full-time." For the reasons stated in paragraphs 2 and 5 above, the Respondent's exception is rejected.
9. Respondent excepts to the Hearing Officer's omission of any mention of the what he claims is a provision in his 1984 contract with the City whereby his salary could be increased annually by up to 10% under certain circumstances. Respondent argues that because he never asked for the 10% pay, his salary was never increased under that provision of the agreement, but that "it is important to note that he could have sought an additional 10% of his salary each year, with the blessings of the city."
For the reasons set forth in paragraphs 2 and 5 above, Respondent's exception is rejected. In addition, we note that Respondent's claim is contrary to the evidence of record. Respondent's exhibit No. 3, which includes the Revised Professional Agreement that Respondent entered into with the City, at page 2, permits Respondent to receive additional compensation in an amount not to exceed 10% of his salary for the handling of "extra-ordinary" litigation authorized by the City Council. This provision neither provides an annual 10% increase in salary nor could the Respondent have requested one under this provision.
10. Respondent excepts to that portion of the Hearing Officer's Finding of Fact wherein she finds that the  agreement [between the City and the Respondent] "described a mechanism for review by the city attorney of each new case form opened by the firm to insure that no conflict existed between the new client matter and the city." Respondent argues that the city Attorney was required to review all such new accounts and then give the new account cards to the City Auditor for additional independent review.
Respondent's exception is rejected for the reasons stated in paragraphs 2 and 5 above. In addition, we note that the agreement that the Hearing Officer refers to (Exhibit R 3 at p. 3 of the agreement) states:
Each new case form opened by the firm will be reviewed by the City Attorney to ensure that no conflict exists between the handling of the new client matter and the City. [Emphasis supplied.]
We also note that contrary to Respondent's assertion that the City Attorney was required to give the account card to the City Auditor for additional independent review, the agreement only requires that the case forms be made available to the City Auditor.
11. Respondent excepts to the following statement in paragraph 14 of the Hearing Officer's Findings of Fact:
Nothing in the agreement specified how much city work the firm should get; that was substantially left to English's discretion.
Respondent argues that this statement does not reflect the facts in evidence regarding the scope and type of legal work that was expected to be done by the firm. He argues further that the "past practice of referring most legal work to the firm was expected by the city to remain unchanged." He writes:
The city still controlled the (low) hourly rates for all work going to the firm, and English had no discretion to change the long-standing practice of using the firm for all legal work except that which historically had gone out to other specialized firms, or firms owned by minority lawyers.
Respondent's exception is rejected for the reasons set forth in paragraphs 2 and 5 above. The facts Respondent refers to are found by the Hearing Officer in paragraph 13 of her Findings of Fact. Respondent's reference the City's control over the "(low) hourly rates" for all work going to the firm also is misleading in light of the Respondent's testimony about the firm's acceptance of the lowest rate that the firm gave anyone for services because of the volume of work that it was receiving from the City. See Tr. p. 108.
12. Respondent excepts to what he characterizes as the Hearing Officer's failure to find that the Task Force report and long-standing past practice of the City required English to continue to give the firm "the bulk of the City's legal business" because the firm's hourly rates were controlled and kept lower by the City. He also excepts to the Hearing Officer's "failure to notice that the percentage of work done by the City decreased from 63.3% in fiscal year 1986 to 40.9% in fiscal year 1991." He argues that this mathematical fact is conclusive proof that Mr. English did not ever take advantage of his alleged "discretion" by increasing the firm's City business. Respondent argues that the facts clearly show that he decreased the firm's relative position in favor of other firms, even while the City policy was to utilize his firm the most.
Respondent's exception is rejected for the reasons stated in paragraphs 2 and 5 above. Respondent's exception also has no merit because the Hearing Officer specifically found at paragraph 13 of her Findings of Fact:
The agreement clearly contemplated continued use of the Henry, Buchanan, Mick & English firm. It provided: "All other work performed by the City attorney's law firm shall be paid for at the hourly rate established by the commission."
It was the 1984 agreement that was significant with respect to the continued use of the Respondent's law firm, not the "long-standing past practice of the City." In addition, the Task Force Report did not require Respondent to do anything and, contrary to Respondent's assertion, the firm's hourly rates were not "controlled" by the City but agreed to between the City and the firm in consideration of the volume of work that the firm anticipated receiving from the City. Finally, the facts do not, as Respondent asserts, conclusively show that the percentage of work done by the City decreased from 1986 to 1991 or that he decreased the firm's relative position in favor of other firms.
The figures indicate that in 1986, the Respondent's law firm's share of the City's legal business was 63%. In 1987, the firm had a 30% increase in the amount paid to it as compared to a 45% increase in the amount paid to other law firms (the total percentage of monies paid for legal work to the firm was 60%). In 1988 the percentage of monies paid to the firm for the City's legal work increased to 69% of the total, while the increase over the year before paid to the firm was 57% and to the other law firms was 11%. In 1989 the amount of monies paid to the firm over 1988 increased 7% and the amount paid to other firms over 1988 figures increased 303% (the total percentage of monies paid to the firm for the City's legal work was 37%). In 1990 the firm's increase in monies paid to it by the city over 1989 amounts was 33%, while the increase to other law firms was 15% (the total percentage of monies for the City's legal paid to the firm was 40%). Finally, in 1991 the amount of monies paid to the law firm for work done on City business increased 45% over the amounts paid to the firm the previous year, while the amounts paid to other firms increased only 43% (the total percentage of monies paid to the firm during 1991 for handling the City's legal business was 40%). Some of the increase paid to other law firms can be attributable to extra-ordinary legal matters, i.e., major territorial dispute with Talquin Electric Corporation and significant non-electric issues "starting particularly in '89." (Tr. p. 112).
Conclusions of Law
13. Respondent excepts to the Hearing Officer's conclusion at paragraph 24 of the Recommended Order that Respondent "directly or indirectly purchased services from his own firm . . . (and) he also, in his private capacity, sold the firm's services to the City." Respondent argues that the Hearing Officer's conclusion is unsupported by the record. He argues that the Respondent did not "purchase services" from his firm; the City purchased all legal services from all law firms. He argues further that the City's longstanding practice, even before he was appointed to be City Attorney, required the purchase of most legal services from the Henry, Buchanan firm, "where the hourly rates were controlled (by ordinance) in order to save money on legal services." Finally, Respondent argues that contrary to the Hearing Officer's conclusion that he "sold the firm's services to the City," the evidence shows that the City was "buying" legal services from the firm long before the he was hired by the firm and continues to buy services from the firm to this day.
We disagree with the Respondent's contentions. The record contains substantial competent evidence upon which the Hearing Officer properly concluded that Respondent either directly or indirectly purchased services from his own firm. See Howard v. State Commission on Ethics, 421 So. 2d 37 (Fla. 3d DCA 1982). In light of the Respondent's discretion both to assign work to his law firm and to hire outside counsel, and in light of the fact that the amount of work he assigned to his firm increased substantially between 1986 and 1991, we conclude that the Respondent, as City Attorney, purchased legal services either directly or indirectly from his law firm, as well as sold legal services to the City as a partner in the firm in violation of Section 112.313(3), Florida Statutes.
Respondent's claim that the City had a longstanding practice of acquiring legal services from the Henry, Buchanan firm begs the question. Once Respondent became a public officer by his appointment to the City Charter position of City Attorney in 1983 and an employee of the City in 1984, he was prohibited by Section 112.313(3), Florida Statutes, from purchasing services for the City from his law firm and from selling his law firm's services to the City as a partner in the firm.
14. Respondent excepts to the Hearing Officer's conclusion in paragraph 24 of the Recommended Order that the "grandfather" provision of Section 112.313(3), Florida Statutes, does not apply in this case. Respondent argues that the firm had a contract for legal services with the City since 1971--before the Code of Ethics was enacted. He argues that the contract between the firm and the City has not changed--that it essentially has remained the same. He argues that the only change was ministerial, that is, a different person at the firm was designated as the "City Attorney." He argues that his situation is similar to those discussed in CEO's 81-49 and 81-50. Respondent also argues that the "grandfather clause" in Section 112.313(3), Florida Statutes, exempts his contract with his firm from the statute's prohibition because it was entered into before 1984--when he began his public employment.
Respondent's exception is rejected. His argument misapprehends the language and the purpose of the Section 112.313(3) exception to the prohibition of doing business with one's own agency. The exception is as follows:
This subsection shall not affect or be construed to prohibit contracts entered into prior to:
(a) October 1, 1975.
(b) Qualification for elective office.
(c) Appointment to public office.
(d) Beginning public employment.
While there is no corresponding language in Section 112.313(7)(a), Florida Statutes, we also have applied this "grandfather clause" to that provision relying on Section 112.316, Florida Statutes. See CEO 82-10.
The "grandfather clause' applies to situations in which a contract has been entered into between a business entity and a government agency prior to an individual, who is employed by or owns an interest in the business, going to work for or becoming a public officer in the agency. We found in CEO 76-91 that by enacting the "grandfather clause," the Legislature intended to exempt from the provisions of Section 112.313(3) those contracts which were entered into at a time when the subject public official or employee was not in a position to take advantage of his public position. We also found that this assumed purpose is not served by including in the exemption either contracts which do not state specified terms and, therefore, must be negotiated at various times after the making of the contract, or contracts which do not have specified terms and, therefore, must be renegotiated periodically. Thus, we repeatedly have found that, although there may be no conflict where an individual initially becomes an officer or employee of an agency which already had a contract with the public officer's or employee's business, if the contract is renegotiated or renewed, a violation of the Code is created. See CEO's 86-71, 88-29, 90-18, and 90-70.
Here, Respondent's firm performed services for the City prior to his being appointed to the office of City Attorney in 1983 and being hired as a City employee in 1984; however, its "agreement" with the City to perform the City's legal work is not the kind of contract which would have triggered the grandfather clause because there was no limit placed on the amount of work which could be assigned to the firm by the City Attorney and the hourly attorney rates were periodically renegotiated and renewed with the City. In addition, the Hearing Officer also properly concluded that in 1984, the City insisted on a new approach to its receipt of legal services and did not consider itself bound to any prior arrangement. Thus, contrary to Respondent's claim that the 1984 contract only effected a "ministerial" change in the firm's agreement with the City, we conclude, as did the Hearing Officer, that when the City began paying Respondent directly for his services, rather than the law firm, a new contract with the firm took effect as to which the "grandfather clause" did not apply.
Respondent's reliance on CEO's 81-49 and 81-50 is misplaced. While we recognized in both opinions that Section 112.313(3) contains a "grandfather clause" which would exempt contracts entered into prior to October 1, 1975, we found that it did not apply in either case. In CEO 81-49, we found that the School Board had not indicated any intention also to contract with the School Board Attorney's law firm when it entered into its oral contract with the attorney, which was modified twice thereafter, and in CEO 81-50 we found that it did not apply because the contract between the School Board and the firm was entered into annually.
Finally, we reject Respondent's suggestion that the "grandfather clause" also should be applied to exempt contracts, such as his contract with the firm, entered into prior to his beginning public employment. The "grandfather clause" applies to contracts that otherwise would be prohibited by Section 112.313(3), Florida Statutes, and not to contracts between a public officer or employee entered into in his private capacity with his business entity.
15. Respondent excepts to the Hearing Officer's conclusion in paragraph 25 of the Recommended Order wherein she concludes that Respondent has violated Section 112.313(7)(a), Florida Statutes. Respondent argues that "as long as the government evinces a clear intent either to allow or require a public official or employee to do what he is doing as part of his duties, the provisions of Section 112.313(7)(a) cannot prohibit his conduct." Respondent's exception is rejected.
The first part of Section 112.313(7)(a), Florida Statutes, prohibits a public officer or employee from having any employment or contractual relationship with a business entity which is doing business with or is subject to the regulation of his agency. The record contains substantial competent evidence upon which the Hearing Officer properly concluded that Respondent had a contractual relationship with his law firm which was doing business with the City. Therefore, we conclude that a violation of the first part of Section 112.313(7)(a) existed.
The second part of Section 112.313(7)(a) prohibits a public officer or employee from having an employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. This provision is the codification of 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 duty would be overborne in the struggle.
Zerwick v. State Commission on Ethics, 409 So. 2d 57, 61 (Fla. 4th DCA 1982), quoting Justice Terrell in City of Coral Gables v. Coral Gables, Inc., 119 Fla. 30, 160 So. 476 (1935).
There is competent substantial evidence of record to support the Hearing Officer's conclusion that the Respondent's status as both a public officer and employee, as well as a partner in a law firm doing business with the City, created a situation which "tempted dishonor." Respondent's duty as a public officer or employee was to the City; however, the more work that he assigned to his law firm, the greater the economic benefit to the firm was, and the greater his potential partnership distributions also were. This is the same inherent and irreconcilable conflict which we have previously recognized in Howard v. Commission on Ethics, 421 So. 2d 37 (Fla. 3d DCA 1982), and in In re J.G. Spicola, 4 F.A.L.R. 4261 (Comm. on Ethics 1992).
16. Respondent excepts to the Hearing Officer's conclusion at paragraph 26 of the Recommended Order wherein she concludes that the escape provision of Section 112.313(7)(b), Florida Statutes, is not applicable to Respondent's situation. We conclude that the Hearing Officer's conclusion is correct. Therefore, the Respondent's exception is rejected.
Respondent was required to be a lawyer in order to be City Attorney. Section 112.313(7)(a), Florida Statutes, as applied in this case does not prohibit Respondent from practicing in his chosen profession as an attorney. It does, however, prohibit him as a public officer and employee from serving as a partner in a law firm and reaping the benefits of that partnership at the same time that the firm is doing business with the City. We also agree with the Hearing Officer's conclusion that no law or ordinance required or permitted Respondent to remain a partner in the law firm and to continue to receive a distribution of its profits at the same time that he was a public officer and employee.
Upon review of the record before us, we conclude that the findings of the Hearing Officer are based upon competent substantial evidence and that the D.O.A.H proceedings complied with the essential requirements of law. Therefore, the Findings of Fact set forth in the Recommended Order, except as modified herein, are approved, adopted, and incorporated herein by reference.
Conclusions of Law
The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
Accordingly, the Commission on Ethics finds that the Respondent violated Sections 112.313(3) and 112.313(7)(a), Florida Statutes.
The Hearing Officer recommended that Respondent be required to pay a penalty of $5,000.00 restitution and a civil penalty of $10,000.00 ($5,000.00 per violation), for a total of $15,000.00. We find her recommendation to be appropriate.
Having found that the Respondent, James R. English, as City Attorney of the City of Tallahassee, violated Sections 112.313(3) and 112.313(7)(a), Florida Statutes, it is the recommendation of the Commission on Ethics that a penalty of restitution of $5,000.00 and a civil penalty of $10,000.00 be imposed upon the Respondent, for a total of $15,000.00.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, January 27, 1994.
Joel K. Gustafson
THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF ADMINISTRATIVE APPEAL PURSUANT TO RULE 9.110 FLORIDA RULES OF APPELLATE PROCEDURE, WITH THE CLERK OF THE COMMISSION ON ETHICS, 2822 REMINGTON GREEN CIRCLE, SUITE 101, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709; AND BY FILING A COPY OF THE NOTICE OF APPEAL ACCOMPANIED BY THE APPLICABLE FILING FEES WITH THE APPROPRIATE DISTRICT COURT OF APPEAL. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.
cc: Mr. James R. English, Respondent
Mr. Bruce A. Minnick, Attorney for Respondent
Ms. Virlindia Doss, Commission Advocate
Mr. Eugene Danaher, Complainant
Honorable Mary Clark, Hearing Officer
Division of Administrative Hearings