IN RE:  JAMES R. ENGLISH,          )

                                   )                              CASE NO. 93-1523EC

     Respondent.                   )






     Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above-styled case on July 12, 1993, in Tallahassee, Florida.




     The Advocate for the   Virlindia Doss, Esquire

     Florida Commission on  Assistant Attorney General

     Ethics:                Department of Legal Affairs

                            The Capitol, PL-01

                            Tallahassee, Florida  32399-1050


     For Respondent:        Bruce A. Minnick, Esquire

                            Mang, Rett & Collette, P.A.

                            660 East Jefferson Street

                            Post Office Box 11127

                            Tallahassee, Florida  32302-3127




     On October 20, 1992, the State of Florida Commission on Ethics issued its order finding probable cause that


          ...Respondent, as City Attorney for the City

          of Tallahassee and an employee of the City,

          violated Section 112.313(3) by assigning

          legal work to the law firm in which he was a

          partner and for which legal work the City

          paid the law firm, and Section 112.313(7)(a)

          by holding a one-sixth ownership interest in

          a law firm doing business with the City.


     The issue is whether those violations occurred and, if so, what discipline or penalty is appropriate.




     On March 17, 1993, the Executive Director of the Commission on Ethics forwarded this case to the Division of Administrative Hearings for conduct of a public hearing and for a recommended order.  After consultation with counsel for the parties, the hearing was scheduled as set forth above.


     At the hearing, the Advocate presented one witness, the Respondent, and submitted the following exhibits, received in evidence without objection:  Advocate's exhibits #1-4, 6-7, 12-16, 19-27.


     Respondent testified in his own behalf and presented the additional testimony of Hurley Rudd, Jack McLean and Harry Morrison.  Respondent's exhibits #3-5, 8-11 and 17 were received in evidence.  Respondent's motion to supplement record exhibits, filed August 24, 1993, is DENIED as moot.  The proposed supplemental exhibit was already received as Advocate's #21 (agenda and task force report).


     The complainant, Eugene Danaher, attended the hearing and made a statement at the close of the parties' cases.


     A transcript was filed and both parties submitted proposed recommended orders.  The findings of fact proposed by each party are addressed in the attached appendix.




     1.  The charter of the City of Tallahassee was adopted in 1919, and its provisions for a city attorney have remained basically unchanged since then.  Section 29 of the City of Tallahassee Code states that the city commission shall appoint a city attorney.  The code also authorizes the city attorney, with the advice and consent of the city commission, to appoint one or more assistant city attorneys to serve at his pleasure and under his direction and supervision.  (Advocate's exhibit #16)


     2.  Until recent years there was no full-time city attorney.  The city commission appointed an attorney who was not an employee of the city, but rather was a member of a law firm.  The city and the firm had an arrangement under which the firm was paid a monthly retainer for forty hours work at a set hourly rate.  The firm billed the city for any work over forty hours each month at the approved hourly rate.


     3.  Bryan Henry was appointed city attorney in the early 1970s, around 1971 or 1972.  He was a principal and founder of the firm, Henry and Buchanan, which later became Henry, Buchanan, Mick & English.


     4.  Respondent, James A. "Jim" English (English), worked as a law clerk during law school for Roy Rhodes, the prior city attorney, and then for Bryan Henry.  He was hired by the Henry and Buchanan law firm as an associate after law school in 1975.  Beginning early in his career, English was involved almost exclusively in legal work for the city; even then, the volume of work exceeded the capacity of any single individual.  Between 1974 and 1984, from three to five lawyers in the firm did some work for the city, based on their expertise and experience and based on their assignments from Bryan Henry, the city attorney.


     5.  In 1977 English became a shareholder in the firm, Henry, Buchanan, Mick & English, P.A., a Florida professional corporation.  From that time until he left the firm in 1992, he received distributions of his share of the firm's profits.


     6.  Bryan Henry became ill in 1980, and most of the duties of the city attorney were performed by English.  In September 1983, Bryan Henry resigned and recommended that English be appointed to succeed him.  On September 13, 1983, the city commission voted to appoint Jim English as the city attorney.


     7.  Discussion accompanying the appointment reflected the commission's continued interest in the manner of delivery of legal services to the city.  Earlier, in 1981, the commission had discussed alternative methods and had requested research and reports on the experience of other Florida cities.


     8.  The appointment of Jim English in September 1983 did not immediately change the status quo; that is, the parties continued to operate on the retainer plus fee arrangement and English received no salary nor other benefits from the city.  The agreement or arrangement was not evidenced by a written contract.  Rather, the commission voted on the hourly rate in its annual budget deliberations.


     9.  In May 1984, after the city elections, the commission established its priority issues.  By this time, there were three lawyers on the commission:  Carol Bellamy, Kent Spriggs and Jack McLean.  The delivery of legal services was designated a priority or "target" issue.  A task force or committee was appointed on June 26, 1984, to study the issue and report back to the commission.  The committee, chaired by Commissioner Bellamy, included Commissioner Rudd, the city manager, the director of employee relations, the director of the office of management and budget, and the city attorney (English).  Its charge was to report back to the commission on its study of three options:  in-house counsel, outside counsel (the existing structure), or a blend of the two (minimal in-house staff, supplemented with outside contract counsel).


     10.  The task force report is dated September 24, 1984.  It compared Tallahassee's legal costs with those of eight other cities in Florida.  Tallahassee's costs were ranked second to lowest in "per capita cost", "cost per employee", and "percent of total operating budget".  The report detailed advantages and disadvantages of each of the three options it studied, and the report provided a detailed analysis of the legal department's scope of work derived from three months of the city attorney's time slips.


     11.  The report was placed on the city commission agenda for the October 2, 1984 meeting, but was deferred for the next meeting when the commissioners received a proposed agreement from English.  The proposed agreement was adopted by a 4-1 vote on October 9, 1984.


     12.  The professional services agreement, effective October 15, 1984, provided for English to become a full-time employee of the City of Tallahassee with the same benefits as other appointed officials, except the city manager.  With the exception of pro bono work, his professional time was to be exclusively devoted to "the legal work and other obligations of the charter office of the city attorney."  (Advocate's exhibit #7)  His salary was set at $61,500 per year, and $3,430 per month was established as compensation to his firm for overhead.  The salary increased to $7,327.67 per month in 1991, while the overhead covering English's office and support staff at the firm remained constant.


     13.  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".  (Advocate's exhibit #7, p. 2)  It also required that the monthly billing of the law firm include the percentage of work actually performed by minority professionals in the firm in that given month.  It provided that the number of assistant city attorneys would not be increased without commission approval and that their supervision and performance was the responsibility of the city attorney.  The agreement 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.  It required that the city attorney continue to file annual statements of financial interests for the law firm indicating clientele of the firm which generated over 10 percent of the firm's income.


     14.  Nothing in the agreement specified how much city work the firm should get; that was substantially left to English's discretion.  The commission was aware of the type of work the firm had been providing and what work was typically performed by other firms; for example, utilities-related legal work and the prosecution of cases before various city regulatory boards were being contracted out to other firms.


     15.  Between 1986 and 1991, the Henry, Buchanan, Mick & English firm received the bulk of the city's legal business:


Fiscal Year  Henry, Buchanan, Mick & English  Other Legal Counsel


  1986              $230,332.75                 $  133,697.00

  1987               301,583.47                    194,034.56

  1988               476,484.66                    216,212.95

  1989               510,821.82                    873,470.61

  1990               684,472.55                  1,000,368.48

  1991               993,384.45                  1,434,548.80

                                       (Advocate's exhibit #4)


The city was one of the firm's largest clients.  (Respondent's exhibit #5, Statements of Financial Interests, Part B)


     16.  Between 1985 and 1991, English's share of profit distributions from the law firm totaled $86,157.00.  He did not receive a salary from the firm.


     17.  After the complaint was filed in this case, English resigned from the firm and sold his stock shares back to the firm.  The resignation was effective May 1, 1992.


     18.  Although English was familiar with the ethics code, had lectured on it, and had helped draft a city policy based on the code, neither he nor any of the three lawyers on the commission at the time apparently contemplated that his employment status created in 1984 violated the code.  Debate and discussion on the provision of legal services was open and vigorous in the years and months immediately preceding the agreement in 1984.  In the view of the two former commissioners who testified in this proceeding, Hurley Rudd and Jack McLean, the agreement represented a fair and reasonable solution to the variety of concerns raised by the individual commissioners.  Those concerns included accountability, avoidance of conflict with other clients of the firm, the use of minority businesses, quality of services, and, of course, economy.


     19.  No evidence in this proceeding suggests that the city was, in fact, ill-served by the agreement over the years.  The city has more recently authorized the creation of an in-house legal department and has staffed it; and English remains the city attorney and an employee of the city.




     20.  The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), F.S., and Rule 34-5.010, F.A.C.


     21.  The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding.  Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Service, 348 So.2d 249 (Fla. 1st DCA 1977).  In this proceeding, it is the commission, through the Advocate, that is asserting the affirmative that Respondent violated sections 112.313(3) and 112.313(7)(a), F.S.  Therefore, the burden of proving the elements of Respondent's alleged violations is on the Advocate.


     The standard of proof in cases before the Ethics Commission requires proof of the charges by a preponderance of the evidence.  In re Michael Langton, 14 F.A.L.R. 4175 (1992).  See also In re Leo C. Nichols, 11 F.A.L.R. 5234 (1989).


     22.  Section 112.313(3), F.S., provides, in pertinent part:



          employee of an agency acting in his official

          capacity as a purchasing agent, or public

          officer acting in his official capacity,

          shall either directly or indirectly purchase,

          rent, or lease any realty, goods, or services

          for his own agency from any business entity

          of which he or his spouse or child is an

          officer, partner, director, or proprietor or

          in which such officer or employee or his

          spouse or child, or any combination of them,

          has a material interest.  Nor shall a public

          officer or employee, acting in a private

          capacity, rent, lease, or sell any realty,

          goods, or services to his own agency, if he

          is a state officer or employee, or to any

          political subdivision or any agency thereof,

          if he is serving as an officer or employee of

          that political subdivision.

                              * * *

            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.


Section 112.313(7), F.S. provides, in pertinent part:




            (a)  No public officer or employee of an

          agency shall have or hold any employment or

          contractual relationship with any business

          entity or any agency which is subject to the

          regulation of, or is doing business with, an

          agency of which he is an officer or employee,

          excluding those organizations and their

          officers who, when acting in their official

          capacity, enter into or negotiate a

          collective bargaining contract with the state

          or any municipality, county, or other

          political subdivision of the state; nor shall

          an officer or employee of any agency have or

          hold any employment or contractual

          relationship that will 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.


     23.  When he was appointed city attorney in 1983, English became a "public officer" as defined in section 112.313(1):  "...the term 'public officer' includes any person elected or appointed to hold office in any agency, including any person serving on an advisory body."  In this regard, his circumstances are distinguished from those of the city attorney in CEO 81-61 whom, according to that opinion, was not "appointed" to the office.


     24.  As city attorney, English "directly or indirectly" purchased services from his own firm.  He also, in his private capacity, sold the firm's services to the city.  These facts establish a violation of section 112.313(3), F.S.  See, Howard v. State Commission on Ethics, 421 So.2d 37 (Fla. 3rd DCA 1982).  The grandfather provisions of section 112.313(3), F.S., are not applicable.  Although the city commission periodically approved hourly rates for the firm, no contract required that any quantity of work be referred to the firm.  The arrangement was open-ended, with some degree of oversight by the commission in its budget review.  Whatever agreements or arrangements existed prior to 1984, it is obvious from the minutes of the commission meetings and the testimony in this proceeding that the commission in 1984 insisted on a new approach, made a complete and thorough review of available options and did not consider itself bound to any prior arrangement.  The relevant "contract" for purposes of applying the grandfather clause is the October 15, 1984 contract.


     25.  The evidence also establishes a violation of section 112.313(7), F.S.  English's firm did business with the agency of which he was an officer; he had the authority to generate that business at the same time that he received distributions of the firm's profits.  Without any suggestion of ill intent, that status falls within both proscriptions of section 112.313(7)(a), F.S.  The status created a situation which "tempt[ed] dishonor".  Zerweck v State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982).


     26.  Contrary to Respondent's assertion, the escape provision of section 112.313(7)(b), F.S., does not apply:


            (b)  This subsection shall not prohibit a

          public officer or employee from practicing in

          a particular profession or occupation when

          such practice by persons holding such public

          office or employment is required or permitted

          by law or ordinance.


English was obviously required to be a lawyer, but that is not the issue.  He was not required nor permitted by any law or ordinance to remain a partner in the law firm and reap its benefits.




     27.  Section 112.317, F.S., provides, in pertinent part:


            112.317  Penalties.--

            (1)  Violation of any provision of this

          part, including, but not limited to, any

          failure to file any disclosures required by

          this part or violation of any standard of

          conduct imposed by this part, or violation of

          any provision of s. 8, Art. II of the State

          Constitution, in addition to any criminal

          penalty or other civil penalty involved,

          shall pursuant to applicable constitutional

          and statutory procedures, constitute grounds

          for, and may be punished by, one or more of

          the following:

            (a)  In the case of a public officer:

          1.  Impeachment.

          2.  Removal from office.

          3.  Suspension from office.

          4.  Public censure and reprimand.

          5.  Forfeiture of no more than one-third

          salary per month for no more than 12 months.

          6.  A civil penalty not to exceed $5,000.

          7.  Restitution of any pecuniary benefits

          received because of the violation committed.


Pursuant to section 112.324(7), F.S., the Commission on Ethics, upon finding a violation of the ethics code, must report its findings and recommend appropriate action to the proper disciplinary body, in this case, the city.


     28.  English should have known that his dual status created violations of the ethics code.  The two cases cited above, Howard and Zerweck, were decided in 1982, prior to the agreement between English and the city.  Both cases appear in annotations to the Florida Statutes.  English is a seasoned and highly respected local government attorney.  It does not matter that other attorneys on the commission may have failed to recognize the problem; he, not they, had the responsibility to advise the city.  Whether his oversight was deliberate or the result of myopic zeal to address the commission's expressed concerns is immaterial.  Both Howard and Zerweck, supra, expressly acknowledge that sections 112.313(3) and (7) proscribe conduct without regard to allegations of impropriety or "dishonor".


     29.  The Advocate suggests a penalty of restitution in the amount of $5,000.00 and a civil penalty of $5,000.00 per violation, for a total of $15,000.00.  This is consistent with the commission's final order and recommendation in In re J.G. Spicola, (order rendered June 11, 1992).  Although it is not possible to ascertain how much of the profit distributions to English were based on work done for the city, it is obvious that some portion was so derived.  The city was one of the firm's largest clients.  (See finding of fact #15, above)




     Based on the foregoing, it is, hereby,




     That the Florida Commission on Ethics issue its public report and final order finding that Respondent, James R. English, violated sections 112.313(3) and (7), F.S., and recommending a penalty of $5,000.00 restitution, and a civil penalty of $10,000.00, for a total of $15,000.00.


     DONE AND RECOMMENDED this 19th day of November, 1993, in Tallahassee, Leon County, Florida.




                           MARY CLARK

                           Hearing Officer

                           Division of Administrative Hearings

                           The DeSoto Building

                           1230 Apalachee Parkway

                           Tallahassee, Florida  32399-1550



                           Filed with the Clerk of the

                           Division of Administrative Hearings

                           this 19th day of November, 1993.





     The following constitute specific rulings on the findings of fact proposed by the parties as provided for in section 120.59(2), F.S.


     The Advocate's Proposed Findings


1.-2.  Adopted in paragraph 1.

3.-4.  Adopted in paragraph 2. and paragraph 4.

5.  Adopted in paragraph 8.

6.  Adopted in substance in paragraph 2.

7.  Adopted in paragraph 4.

8.  Adopted in substance in paragraph 5.

9.-11.  Adopted in paragraph 6.

12.  Adopted in paragraph 8.

13.-15.  Adopted in paragraph 9.

16.  Adopted in substance in paragraph 10.

17.  Adopted in substance in paragraph 11.

18.-19.  Adopted in substance in paragraph 12.

20.  Rejected as unnecessary.

21.  Adopted in paragraph 11.

22.-23.  Adopted in paragraph 12.

24.  Adopted in paragraph 15.

25.-26.  Rejected as cumulative and unnecessary.

27.  Adopted in paragraph 16.

28.  Addressed in paragraph 13.  The agreement addressed

     work to be done by the firm, but did not mandate

     that the firm be used for any given amount.

29.  Adopted in paragraph 14.

30.  Adopted in paragraph 13.

31.-33.  Addressed in paragraph 18.

34.-38.  Rejected as argument or unnecessary.  The

         provisions of the ethics code at issue here do not

         require intent for a violation.


     Respondent's Proposed Findings of Fact


1.  Adopted in paragraphs 1. and 2.

2.  Adopted in paragraphs 2. and 3., in substance.

3.  Adopted in paragraph 4.

4.  Adopted in substance in paragraph 7.

5.  Adopted in substance in paragraph 5.

6.-9.  Addressed in paragraph 7., otherwise rejected as


10.  Adopted in paragraph 6.

11.-12.  Adopted in substance in paragraph 9.

13.-14.  Adopted in part in paragraph 11., otherwise

         rejected as misleading or unnecessary.

15.  Adopted in paragraph 13.

16.  Adopted in paragraph 9.

17.  Rejected as overbroad.  If anyone did recognize a

     conflict, it was not addressed in the commission

     meeting minutes.

18.  Adopted in part in paragraph 17, otherwise rejected

     as unnecessary.

19.  Adopted in substance in paragraph 19.

20.-21.  Rejected as unnecessary.

22.  Adopted in material part in paragraphs 12.-13. and






Virlindia Doss, Esquire

Assistant Attorney General

Department of Legal Affairs

The Capitol, PL-01

Tallahassee, Florida  32399-1050


Bruce A. Minnick, Esquire

Mang, Rett & Collette, P.A.

660 East Jefferson Street

Post Office Box 11127

Tallahassee, Florida  32302-3127


Bonnie Williams, Executive Director

Ethics Commission

Post Office Drawer 15709

Tallahassee, Florida  32317-5709


Phil Claypool, General Counsel

Ethics Commission

Post Office Drawer 15709

Tallahassee, Florida  32317-5709





All parties have the right to submit written exceptions to this Recommended Order.  All agencies allow each party at least 10 days in which to submit written exceptions.  Some agencies allow a larger period within which to submit written exceptions.  You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order.  Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.