STATE OF FLORIDA
COMMISSION ON ETHICS
In re MICHAEL P. OLON, )
Respondent. ) Complaint No. 91-184
) Final Order No. COE ____
FINAL ORDER DISMISSING PETITION FOR COSTS
AND ATTORNEY'S FEES
This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on October 20, 1993 by the Division of Administrative Hearings' Hearing Officer. The Hearing Officer recommends that the Commission enter a Final Order dismissing Respondent's petition for attorney's fees and costs. The Respondent filed exceptions to the Hearing Officer's findings of fact and conclusions of law.
In a November 18, 1993 order, the Commission Chairman granted Respondent's request for an extension of time to file a transcript of the DOAH proceedings but denied his request to file amended exceptions. See November 18, 1993 Order on Respondent's Motion For Continuance and November 18, 1993 Order on Respondent's Motion for Extension of Time for Filing Amended Written Exceptions. The transcript was filed on January 14, 1993. In addition, the Commission has reviewed the following: Recommended Order of the Hearing Officer, eight exhibits offered into evidence by the Respondent, five exhibits offered into evidence by the Complainant, and a joint exhibit which was offered into evidence by both parties. Although not mentioned in the Recommended Order, the depositions of Respondent and Complainant also were filed with the Hearing Officer at the hearing.
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.
Rulings on Respondent's Exceptions
To Findings of Fact
Without specifically identifying or alleging what statements of fact in paragraph 3 and paragraphs 6 through 22 he disagrees with, why he disagrees with these paragraphs, or that they are not supported by competent substantial evidence, Respondent simply states that he takes exception to them. Upon review of the complete record before the Commission, we conclude that the findings of the Hearing Officer are based upon competent substantial evidence and the proceedings on which the findings are based complied with the essential requirements of law. We find no error; therefore, these exceptions are rejected.
Rulings on Respondent's Exceptions to
Conclusions of Law
Respondent excepts to paragraphs 26 and 27 of the Hearing Officer's Conclusions of Law. In paragraph 26, the Hearing Officer concludes that Respondent failed to meet his burden of proof of the grounds for an award of costs and attorney's fees, and in paragraph 27, the Hearing Officer concludes that the complaint was neither frivolous nor baseless. Respondent, however, argues that the Hearing Officer's conclusions render Section 112.317(8), Florida Statutes, meaningless and not in accord with legislative intent. He also argues that "it is absurd to contend that the Legislature would enact a provision with the title 'penalties' and intend no penalty should ever be imposed on anyone who is a public official who use [sic] the Commission on Ethics to punish another public official because he could not garner the political support to have him fired or suspended." Respondent's exceptions are rejected.
The Hearing Officer found, and we accept her conclusion, that Respondent failed to meet his burden in proving that the complaint was "frivolous." With respect to when an appeal may be deemed to be frivolous, the Florida Supreme Court has stated:
A frivolous appeal is not merely one that is likely to be unsuccessful. It is one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever succeed. [Citation omitted.] It must be one so clearly untenable, or the insufficiency of which is so manifest on a bare inspection of the record and assignments of error, that its character may be determined without argument or research. An appeal is not frivolous where a substantial justifiable question can be spelled out of it, or from any part of it, even though such question is unlikely to be decided other than as the lower court decided it, i.e., against appellant or plaintiff in error. [Treat v. State ex. rel Mitton, 121 Fla. 509, 163 So. 883 (1935).]
The facts found by the Hearing Officer, which, as noted above, we cannot modify, do not indicate that the complaint was so untenable under the facts or the law that there was little, if any, prospect that a violation of the Code of Ethics could have been found. Here, as noted by the Hearing Officer, from the facts and law presented in the investigative report, the Advocate urged a finding of probable cause that Respondent violated Section 112.313(7)(a), Florida Statutes. We find that the Hearing Officer correctly concluded that the reasoning applied by the Advocate and our own reasoning as set forth in CEO 91-34 (the opinion that our staff provided to the Complainant) provided ample authority that the complaint was neither frivolous nor baseless. See Taunton v. Tapper, 396 So. 2d 843 (Fla. 1st DCA 1981) (Court found that although we concluded that there was no probable cause to believe that a public officer had violated the Code of Ethics, such determination was not made until after the Commission had conducted a factual investigation and legal research; therefore, the complaint against Tapper could not be characterized as completely untenable or frivolous.)
Section 112.317(8), Florida Statutes, also requires that the complaint be "without basis in law or fact." The use of the words "without basis" by the Legislature implies a complete lack of merit either on the facts or on the law. A complaint cannot be considered to be without basis in law or fact from the mere fact that the Commission ultimately found no probable cause to believe that the Respondent violated Section 112.313(7)(a), Florida Statutes. Here, the Hearing Officer correctly concluded that the complaint was not baseless.
Finally, "malicious intent to injure the reputation of such officer or employee" has been interpreted by the Commission to require a showing of "actual malice." See In re Larry Goodcuff, 13 FALR 3227, 3231 (Comm'n on Ethics 1991). The determination of whether malicious intent to injure the reputation existed must be made from an examination of the circumstances surrounding the filing of the complaint, including the factors listed in Rule 34-5.029(3) of whether there is evidence showing ill will or hostility toward the Respondent and whether the complaint was filed with the knowledge that its allegations were false, or with reckless disregard for the truth of the allegations. In Amant v. Thompson, 390 U.S. 727 (1968), the U.S. Supreme Court stated that:
Reckless conduct is not measured by whether a reasonably prudent man . . . would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.
Here, the Hearing Officer found that Complainant's concern regarding a Respondent's potential conflict of interest was sincere and that for two months he had sought information from the Respondent that could have put the issue to rest. She also found that he had sought advice from the county attorney, the Ethics Commission, and the City Attorney before filing his complaint. She specifically found that the complaint was not filed with a malicious intent to injure the reputation of the Respondent. Therefore, her conclusion that Respondent's failure to respond to the inquiry by the City Attorney through his own attorney invited the filing of the complaint and the resultant investigation is supported by her findings of fact which we are not free to modify. Although Respondent argues that Complainant's announcement that he intended to file an ethics complaint a full month before the filing violates Section 112.317(6), Florida Statutes (the statutory requirement that Commission complaints be kept confidential and a violation thereof to be a misdemeanor offense), and is indicative of his malicious intent, we note that in Doe v. Gonzalez, 723 F.Supp 690 (S.D. Fla. 1988), aff'd, 886 F.2d 1323 (11th Cir. 1989), the Court declared Section 112.317(6) unconstitutional on its face as a violation of the First Amendment to the United States Constitution.
With respect to Respondent's contention that the Hearing Officer's interpretation or application of Section 112.317(8), Florida Statutes, does not comport with legislative intent and that the various rules of statutory construction control, in actuality, Respondent is attempting to argue that the facts found by the Hearing Officer to which she applies the law are incorrect. However, as previously stated, where the facts are based on competent substantial evidence of record, as they are here, the Commission cannot modify them.
The Hearing Officer's interpretation of Section 112.317(8), Florida Statutes, is consistent with the following cases in which the Commission awarded attorney's fees: In re Mary McCarty, 15 FALR 4284 (Commission on Ethics, 1993); and Couch v. Commission On Ethics, 617 So. 2d 1119 (Fla. 5th DCA 1993).
The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
The Conclusions of Law set forth in the Recommended Order are approved, adopted, and incorporated herein by reference.
WHEREFORE, Respondent's Petition For Costs and Attorney's Fees is hereby dismissed.
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: Ms. Marianne A. Trussell, Attorney for Respondent
Mr. J.R. Callahan, Attorney for Complainant
Honorable Mary Clark, Hearing Officer
Division of Administrative Hearings