Opinion
No. X-370.
June 30, 1976. Rehearing Denied June 30, 1976.
W. Dexter Douglass, of Douglass Powell, Tallahassee and Walter M. Meginniss, of Crary, Buchanan Meginniss, Stuart, for petitioner.
Robert L. Shevin, Atty. Gen., William C. Sherrill, Jr., Asst. Atty. Gen., and Lawrence A. Gonzalez, Tallahassee, for respondents.
The Florida Commission on Ethics has found petitioner, a member of the City Commission of Stuart, Florida, to be in violation of F.S. 112.313(1), F.S. 1973, as amended by Chapter 74-177, Laws of Florida which provides as follows:
"No officer or employee of a state agency, or of a county, city or other political subdivision of the state, or any legislator, or legislative employee shall accept any gift, favor, or service, of value to the recipient, that would cause a reasonably prudent person to be influenced in the discharge of official duties."
In his Petition for Writ of Certiorari, petitioner asserts that the statute is unconstitutionally vague on its face and was unconstitutional as applied to him. We agree.
A factual background is necessary. In May of 1974, M W Land, Inc., a foreign corporation, filed a petition to annex certain lands lying in Martin County into the City of Stuart. M W was at the time involved with Rossmoor Corporation in a joint venture for the development of the property to be annexed. A PUD (Planned Unit Development) zoning regulation had only recently been enacted by Martin County, but Stuart had no such ordinance. The PUD concept was virtually unknown in the area. To demonstrate the concept and the quality of planning used by Rossmoor in its planned communities, an invitation was extended to the City Commission and certain employees of Stuart to visit and inspect its development known as Laguna Hills in California (located near Los Angeles) which development was deemed to be analogous to the one proposed for Martin County. The trip was for the purpose of fact finding. Prior to the trip, the City Commission sought advice from the city attorney as to any possible "Sunshine Law" violation. When the city attorney informed the Commission that the proposed trip, in his opinion, did not constitute a violation of the "Sunshine Law", petitioner, after personally determining that his vote on the annexation issue would not be influenced made plans to make the trip. Spouses were also invited.
Two groups made the trip. Petitioner and his wife participated in the group which went on the weekend of August 23-25, 1974. Rossmoor Corporation paid for some of the meals and for the air fare of petitioner and his wife. The cost was approximately $1,223.00 to Rossmoor.
Rossmoor paid for all of the evening meals but not all of the lunches, while petitioner paid for his wife's and his own breakfasts.
Subsequent to the trip, a complaint was filed with the Commission on Ethics whereupon Honorable John D. Rawls, a member of the Commission was appointed Hearing Examiner. His findings of fact were adopted by the full Commission with amendments. The Commission found that the petitioner was in violation of F.S. 112.313(1), F.S. 1973, as amended by Chapter 74-177, Laws of Florida, but recommended to the Governor that no further action be taken.
In contending that the statute is unconstitutionally vague, petitioner relies on Zachary v. State, Sup.Ct.Fla. 1972, 269 So.2d 669 and State v. Llopis, Sup.Ct.Fla. 1971, 257 So.2d 17. In the Zachary decision, the Supreme Court promulgated the standard by which a statute is to be evaluated, saying: "The test of a statute insofar as vagueness is concerned is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice." (269 So.2d at page 670) In the Llopis decision, the court held subsection 6 of F.S. 112.313 unconstitutionally vague, quoting with approval from the order appealed wherein the trial judge rhetorically asked: "Under the language of F.S. 112.313(6), who is to say what employment will, in fact, impair the independence of judgment of a person described in the statute? What is the barometer, or ascertainable standard of conduct over which reasonable men of common intelligence are not required to guess at its meaning? The imposition of such liability violates the very fundamental precepts of due process." (257 So.2d at page 19, emphasis added)
F.S. 112.313(6) provided: "No officer or employee of a state agency, or of a county, city, or other political subdivision of the state, or any legislator or legislative employee shall accept other employment which might impair his independence of judgment in the performance of his public duties."
Judged by the principles of law announced in the Llopis case the standard contained within F.S. 112.313(1) is obviously constitutionally unacceptable. In essence, the statute prohibits a city, county, or state officer or employee from accepting any gift that "would cause" a "reasonably prudent person" to be influenced in the discharge of official duties. Do the words of the statute convey a "sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice"? We think not. Indeed, the Llopis opinion appears to have been written in contemplation of this very case. In the trial judge's order, which appears to have been adopted by our Supreme Court, the Judge asked what employment "will, in fact" impair independence of judgment. The statute here considered employs instead of "will, in fact" the words "would cause". The meaning is identical. Further, the trial judge (and the Supreme Court) used the descriptive phrase "reasonable men of common intelligence." The statute (F.S. 112.313(1)) uses the words "reasonably prudent person."
While we too find ourselves, as did the Supreme Court in Llopis, especially sympathetic with legislation aimed at safeguarding the public and insuring honesty and integrity in government at every level, nevertheless we may not allow our sympathies to interfere with the constitutional rights of those members of the public who are affected by the statute. All citizens, whether in the public or private sector, are entitled to be informed with reasonable precision what acts are proscribed. It is basically unfair, and therefore contrary to the American scheme of justice, to require a person to act at his or her peril. The determination of a standard of guilt may not be left to the mood of the times nor may it be supplied by either courts, commissions, or juries. Any statute employing terms or words so vague that men or women of common intelligence must guess as to its meaning and differ as to its application violates the first essential of due process of law.
State v. Llopis, supra, and authorities therein cited.
Having found that the statute which petitioner is alleged to have violated is unconstitutionally vague, the Petition for Certiorari is granted and the decision of the Florida Commission on Ethics is
QUASHED.
McCORD and MILLS, JJ., concur.
BOYER, C.J., specially concurs.
ON PETITION FOR REHEARING
Respondents have filed a petition for rehearing contending that since § 112.313(1), F.S. 1973, as amended by Chapter 74-177, Laws of Florida, is a part of the statutory "code of ethics for public officers and employees" and since it is a code of ethics and is civil in nature rather than criminal, it is not subject to the constitutional tests of due process for vagueness that are applied to criminal statutes. Respondents liken it to a professional code of ethics and contend that it is no more vague than some restrictions of such professional codes. No authority has been cited and our research has revealed none which deal with vagueness in provisions of professional codes of ethics. We make no ruling here as to provisions of professional codes of ethics promulgated by organized professions. While our ruling may possibly have some bearing on a future case of such nature, we specifically confine the ruling to the case that is now before us.
This statutory code of ethics sets forth certain acts which public officers and employees are prohibited from performing. § 112.317, F.S. 1974 Supplement, specifies the penalties which may be imposed for violations. §§ 112.320-.324, F.S. 1974 Supplement, create an administrative agency, the Commission on Ethics (respondents here) which is empowered to investigate alleged violations by public officers and employees, hold hearings and determine whether violations of the Code have occurred. The Commission's orders are subject to review by this court under § 120.68, Florida Statutes.
While this statutory code is not criminal, from our research we have found no authority and none has been cited to us to the effect that the constitutional point in question is limited to criminal cases. Our research has revealed the opposite. See the following cases which apply the rule against vagueness to non-criminal statutes which state agencies are called upon to administer: Sarasota County v. Barg, Fla., 302 So.2d 737 (1974); Schneider v. Sweetland, Fla., 214 So.2d 338 (1968); Bayou Barber College, Inc. v. Mincey, Fla., 193 So.2d 610 (1967). Also, the Supreme Court in Conner v. Joe Hatton, Inc., Fla., 216 So.2d 209 (1968), a civil case, succinctly set forth the proposition of law with which we are concerned.
"When the statute is couched in vague and uncertain terms or is so broad in scope that no one can say with certainty, from the terms of the law itself, what would be deemed an infringement of the law, it must be held unconstitutional as attempting to grant to the administrative body the power to say what the law shall be. See State ex rel. Davis v. Fowler, 1927, 94 Fla. 752, 114 So. 435, 437; and Lewis v. Florida State Board of Health, Fla.App. 1962, 143 So.2d 867, 875. As stated in 1 Fla. Jur., Administrative Law, at page 243,
`A law must be complete in itself, in all its terms and provisions when it leaves the legislative branch of government, so that by appropriate judicial review and control any action taken pursuant to such delegated authority may be kept within the defined limits of the authority conferred and within the express and implied limitations of all controlling provisions and principles of dominant law, and it is not left to an administrative authority to decide what should and what should not be deemed infringement of the law.' (Emphasis added.)"
The prohibition contained in the statute in the case sub judice falls within the prohibited range of vagueness and uncertainty proscribed by the above pronouncement of the law.
The petition for rehearing is denied.
BOYER, C.J., and McCORD MILLS, JJ., concur.
The factual situation with which we are presently concerned perfectly illustrates the inadequacy of the statute. Petitioner and the other City Commissioners were faced with a highly significant annexation decision. Although M W Land, Inc., filed the petition for annexation, it was the Rossmoor Corporation which was to be responsible for the development of the property to be annexed. Thus, a central question which petitioner and the other City Commissioners had to answer was what type of a company was the Rossmoor Corporation? Rossmoor understood the need for this information and, therefore, offered the trip to Laguna Hills. I have thoroughly examined the record in this case, and have noted that, although Rossmoor had other planned communities (even some in Florida), the Laguna Hills development was the only project which was comparable to the proposed development and which was in such a state of completion as to render an inspection beneficial to the Stuart City Commissioners.
Petitioner and the other City Commissioners were also aware that other officials and employees had been invited, including the City Manager, the City Clerk, the Chief of the Fire Department, the Finance Director, the Recreation Superintendent, the Ambulance Superintendent, the Chairman of the Planning Advisory Board, and several members of the Planning Advisory Board. All those who made the trip stated that it was informative and helpful to them in understanding the nature of the development to be constructed near Stuart.
In pondering his decision whether to make the trip or not, petitioner was forced to balance the above mentioned factors against the wording of the statute. However, the statute provides neither petitioner nor the other City Commissioners with guidelines by which they were to evaluate the proposed trip. It is interesting to note that the City Attorney, when queried as to the possibility of a violation of the Sunshine Law, not only concluded that there was no such violation but did not report to the Commission that the trip raised any ethical issues.