Robert K. Robinson v. Commission on Ethics

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-2187

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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.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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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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