STATE OF FLORIDA
COMMISSION ON ETHICS
In re GEORGE STUART, )
) DOAH Case No. 93-0044EC
Respondent. ) Complaint No. 90-250
) COE Final Order No. 94-01
FINAL ORDER AND PUBLIC REPORT
On August 10, 1993, a Hearing Officer from the Division of Administrative Hearings (DOAH) submitted to the parties and the Commission her Recommended Order, a copy of which is attached hereto. On August 27, 1993, Respondent timely filed exceptions to the Recommended Order. The Commission's Advocate submitted her Response to Exceptions on September 23, 1993. The matter thereafter came before the Commission on Ethics for final agency action.
This matter began with the filing of a complaint by Ken Muszynski and James Muszynski, alleging that George Stuart had violated Article II, Section 8(e), Florida Constitution, by personally representing his private employer for compensation before the Orlando-Orange County Expressway Authority while serving as a State Senator. The allegations were found to be legally sufficient to allege a possible violation of Article II, Section 8(e), Florida Constitution, and Commission staff undertook a preliminary investigation to aid in the determination of probable cause. On June 10, 1992, the Commission on Ethics issued an order finding probable cause, and thereafter forwarded this matter to the Division of Administrative Hearings for conduct of a formal hearing and entry of a recommended order. The hearing was held on April 19, 1993, and the parties then filed proposed recommended orders with the Hearing Officer. The Recommended Order was transmitted to the Commission and the parties on August 10, 1993, and the parties were notified of their right to file exceptions to the Recommended Order in accordance with Rule 34-5.022(2), Florida Administrative Code. Respondent timely filed exceptions on August 27, 1993, and the Commission's Advocate submitted her Response to Exceptions on September 23, 1993.
The Respondent filed exceptions to the Hearing Officer's conclusions of law.
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 proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the Commission is bound by that finding.
The findings of fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
1. Respondent takes exception to the Hearing Officer's legal conclusion that the Orlando-Orange County Expressway Authority is a "state agency" for purposes of Article II, Section 8(e), Florida Constitution. Because we believe that the Hearing Officer's conclusion is legally correct, Respondent's exception is denied.
1. The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
2. Accordingly, the Commission on Ethics finds that the Respondent violated Article II, Section 8(e), Florida Constitution.
The Hearing Officer recommended no penalty be imposed because there is no authority for a penalty. The Hearing Officer is legally correct. The Commission is without statutory authority to recommend a penalty against the Respondent. Thus, the Commission finds that the Respondent, George Stuart, as a member of the Florida Senate, violated Article II, Section 8(e), Florida Constitution, as described herein, and hereby issues its Public Report and Final Order.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, January 27, 1994.
Joel K. Gustafson
YOU ARE NOTIFIED THAT YOU ARE ENTITLED PURSUANT TO SECTION 120.68, FLORIDA STATUTES, TO JUDICIAL REVIEW OF AN ORDER WHICH ADVERSELY AFFECTS YOU. REVIEW PROCEEDINGS ARE COMMENCED BY FILING A NOTICE OF ADMINISTRATIVE APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, AND ARE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF ADMINISTRATIVE APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
cc: Mr. W. Dexter Douglass, Attorney for Respondent
Ms. Virlindia Doss, Commission's Advocate
Mr. Ken Muszynski, Complainant
Mr. James Muszynski, Complainant
Division of Adminstrative Hearings