STATE OF FLORIDA
COMMISSION ON ETHICS
In re FRANK RYSAVY, )
Respondent. ) Complaint No. 91-72
) DOAH Case No. 93-6539EC
) Final Order No. COE ____
This matter came before the Commission on Ethics on the Recommended Order rendered in this matter on September 28, 1994 by the Division of Administrative Hearings' Hearing Officer (a copy of which is attached and incorporated herein by reference). The Hearing Officer recommends that the Commission issue its public report and final order finding that Respondent violated Section 112.313(6), Florida Statutes, by arranging for the employment of his son by the Hillsboro Inlet Improvement and Maintenance District ("District") in Broward County, and did not violate Section 112.313(6), Florida Statutes, by pressuring the District's Dredge Captain and members of the District to rehire his son and to make payments to his son. She also recommends a civil penalty of $1,000 be imposed, as well as the issuance of a public censure and reprimand. The Respondent filed his exceptions on October 17, 1994. The Commission Advocate filed his Response to Respondent's Exceptions on October 18 and his Amended Response on October 19, 1994. Thereafter, Respondent filed his Motion to Strike the Advocate's Response because it does not contain any exceptions and was not filed within the requisite fifteen (15) day period within which to file exceptions.
Having reviewed the Recommended Order, the Respondent's Exceptions, the Commission Advocate's Response and Amended Response, the Respondent's Motion to Strike the Advocate's Response, and the record of the public hearing of this complaint, and having heard arguments of counsel for the Respondent and the Commission Advocate, the Commission makes the following findings, conclusions, rulings, and recommendations:
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.
RULING ON THE RESPONDENT'S MOTION TO STRIKE COMMISSION
ADVOCATE'S RESPONSE TO RESPONDENT'S EXCEPTIONS
Commission Rule 34-5.022(2), F.A.C., permits the Respondent and the Commission Advocate 15 days after receipt of the Recommended Public Report to file exceptions. However, the rules are silent as to the filing of responses to the exceptions. While they are not specifically authorized, they also are not prohibited either.
Accordingly, after considering the pleadings and arguments of the Commission Advocate and the Respondent, we hereby deny the Respondent's Motion to Strike the Commission Advocate's Response and Amended Response to Respondent's Exceptions.
1. Respondent excepts to the Hearing Officer's use of Section 116.111, Florida Statutes (Supp. 1987), to find that he violated Section 112.313(6), Florida Statutes. He claims that such use abrogated his due process rights.
Respondent writes that in finding that his actions were inconsistent with the proper performance of his duties as Chairman of the District, the Hearing Officer found that he violated Section 116.111, which prohibited a public officer from advocating the appointment or employment of a relative "to a position in the agency in which he is serving or over which he exercises jurisdiction or control. . . ." Respondent argues that because Section 116.111 was not within the jurisdiction of the Commission until June 19, 1989, one year after he allegedly used his position to secure a job for his son, the Hearing officer improperly utilized this provision to find that his actions were inconsistent with the proper performance of his public duties.
Respondent argues further that Section 116.111 did not provide for the imposition of any civil or criminal penalties upon a finding of violation. Therefore, a public official employing or advocating the employment of a relative in violation of Section 116.111 is not subject to the penalty provisions of Section 112.317, Florida Statues. He also contends that "the Hearing Officer improperly 'bootstrapped' the anti-nepotism law into the Code of Ethics, thereby denying him his right to procedural due process.
Finally, Respondent charges, in our probable cause finding, which for all intents and purposes forms the "charging document," we found probable cause to believe that the Respondent violated Section 112.313(6), Florida Statutes, not Section 116.111. Furthermore, during the course of the hearing, there was no indication that Section 116.111 would play any role in the disposition of the case. Therefore, in utilizing Section 116.111 to reach her decision, the Hearing Officer essentially permitted an amendment to the charging document after the hearing had concluded. He claims that even if it is assumed that Section 116.111 (1987) could somehow form the basis of the charge against him, the Hearing Officer improperly denied him an opportunity to investigate the charge and prepare a defense.
Respondent's exceptions are rejected.
Prior to the transfer of the anti-nepotism law (Section 116.111, Florida Statutes (1987)) into the Code of Ethics, the Commission assumed investigative jurisdiction over alleged violations of Section 116.111 under its constitutional authority to investigate complaints relating to breach of the public trust. [Article II, Section 8(f), Florida Constitution.] However, the Commission was divested of jurisdiction over violations of law outside of Chapter 112, Florida Statutes, allegedly committed by public officials by Chapter 91-85, Laws of Florida, which limited the definition of "breach of the public trust" to violation of a provision of the State Constitution or Part III of Chapter 112, Florida Statutes. Therefore, the Commission has no jurisdiction over the alleged charge of nepotism as a "breach of the public trust" because the hiring of Charles Rysavy, Respondent's son, took place prior to the transfer of Section 116.111 into Chapter 112, and the Commission has been divested of jurisdiction over such charges of breaches of the public trust that do not fall within either the State Constitution or Chapter 112, Florida Statutes.
However, "breach of the public trust" is not what is charged here. Respondent is charged with misusing his position in violation of Section 112.313(6). In State Commission on Ethics v. Sullivan, 430 So. 2d 928 (1st DCA 1983), the Court recognized the propriety of the Commission determining that a violation of Section 116.111 may be a violation of Section 112.313(6), Florida Statutes. The Court stated:
The "code of ethics as established in [Chapter 112, Part III] refers to Section 112.313, which establishes standards of conduct for public officers and employees of agencies. The operative question then becomes whether violations of Sections 99.102 and 116.111 may be determined to be violations of Section 112.313. We hold that they may be.
. . . . . .
The prohibition against misuse of public office sweeps widely. Generically, it encompasses any misuse of office by a public officer or employee "to secure a special privilege, benefit, or exemption for himself or others." The prohibited misuse of public position might or might not be a violation of another statute. See, for example, DeBusk v. Smith, 390 So. 2d 327 (Fla 1980), where the complaint involved the corrupt use of a public office to secure a special privilege, benefit or exemption for another by causing the alteration and falsification of copies of public documents in violation of Section 112.313(4), Florida Statutes (Supp 1974), the predecessor to Section 112.313(6), Florida Statutes (Supp. 1980).
Id. at 934.
Accordingly, we find that the Hearing Officer properly utilizes Section 116.111 to find that Respondent's action were inconsistent with the proper performance of his public duties. Furthermore, because Respondent was charged with a violation of Section 112.313(6), for which a penalty can be imposed pursuant to Section 112.317, Florida Statutes, rather than with violating Section 116.111, we find that there is nothing improper about the Hearing Officer recommending the imposition of a penalty against the Respondent upon finding that he violated Section 112.313(6), one of the elements of which is that Respondent's actions were inconsistent with the proper performance of his public duties. This element could and was properly proven by the Commission Advocate's proving that Respondent violated Section 116.111 (Supp. 1987).
Finally, we reject Respondent's contention that he had no notice that Section 116.111 would form the basis of the charge against him. Respondent was aware of the factual allegations made in the initial complaint, as well as the statutory violations alleged. He also was aware that while the allegation that he violated Section 116.111 was found to be insufficient to form a possible violation of the Code of Ethics, because such a charge was no longer defined as a "breach of trust" over which the Commission exercises jurisdiction, the same factual allegations were found to be sufficient to allege a possible violation of Section 112.313(6). State Commission on Ethics v. Sullivan, supra, was referenced. Respondent also was aware that the Commission Advocate, in making her recommendation that probable cause be found to believe that a violation of Section 112.313(6) occurred, was relying on the same facts that were initially alleged--that Respondent misused his office by "arranging for the employment of his son, Charles Rysavy, by the HIIMD." Furthermore, we adopted this recommendation in our Order Finding Probable Cause. Accordingly, we find that Respondent had adequate notice of the charges against him. Because these proceedings complied with the essential requirements of law, Respondent's exception is rejected.
Respondent's claim that he had absolutely no indication that the employment of his son was prohibited, conflicts with the Hearing Officer's conclusion in paragraph 26 of her Conclusions of Law that Respondent used his position to secure a job for his son with wrongful intent. Her conclusion apparently is inferred from the following facts:
1. When Captain Decou told [Respondent] that [he] should notify his son that he was being hired, [Respondent] told DeCou that DeCou should tell Charles Rysavy that he was hired. (Finding of Fact No. 9.)
2. When [Respondent] telephoned the two Board members and told them that Captain DeCou had hired his son, he did not mention that he had advised Captain DeCou to hire Charles Rysavy. (Finding of Fact No. 11.)
3. When [Respondent] sent the Board members a memorandum telling them of the pending employment of his son, he couched the memorandum so that it appeared that it was Captain DeCou's idea to hire Charles Rysavy and not [his]. (Finding of Fact No. 12.)
We are cognizant of the Court's admonition in Blackburn v. State Commission on Ethics, 589 So. 2d 431 (Fla. 1st DCA 1991) that an essential element of Section 112.313(6) is a finding that Respondent acted with reasonable notice that his conduct was inconsistent with the proper performance of his public duties and would be a violation of the law or the Code of Ethics. Additionally, the determination that Respondent acted with corrupt intent essentially is a question of fact. See, Heifetz, supra, at 1282. ("Characteristically, whether one is guilty of negligence is a question for the trier of fact" even where the finding has been stated in terms of conclusion of law.) See also Dobry v. State, 211 So. 2d 603 (Fla. 3d DCA 1968). Intent is seldom susceptible of direct proof but is usually shown by circumstantial evidence. Busch v. State, 466 So. 2d 1075 (Fla. 3d DCA 1984), Williams v. State, 239 So. 2d 127 (Fla. 4th DCA 1970). Where the evidence will support conflicting findings, it is the hearing officer's role to decide the issue one way or the other (Heifetz, at 1281), as she did here. Thus, we find that it was entirely proper and within the Hearing Officer's function to draw permissible inferences from the evidence, such as the inference of deception on the part of the Respondent, which is indicative of his knowledge that the hiring of his son was wrong. It is not our function to reweigh the evidence or to rewrite the Hearing Officer's findings as long as there is competent substantial evidence to support the findings, as there is here.
2. Respondent excepts to paragraph 9 of the Hearing Officer's Findings of Fact, wherein she finds that Respondent directed the hiring of Charles Rysavy. He argues that this finding is not supported by competent substantial evidence. We disagree.
In support of his argument, Respondent claims that Captain DeCou was the only witness who claimed that Respondent had advocated the hiring of Charles Rysavy. He also claims that Respondent and Charles Rysavy both denied that Respondent was aware that Charles Rysavy was seeking a position on the Dredge. Therefore, he insists, the Hearing Officer's conclusions could not have been based on a preponderance of the evidence in that the greater weight of the evidence does not support the Hearing Officer's conclusion. However, contrasted with Respondent's claims are Findings of Fact No. 13, wherein the Hearing Officer found from Andrew Potter's testimony that although Mr. Potter normally participated in hiring personnel for the dredge, he did not participate in the hiring of Charles Rysavy, and Finding of Fact No. 12, wherein the Hearing Officer found that Respondent notified the Board through a September 3, 1988 memorandum that Captain DeCou planned to hire his son. These findings, along with Captain DeCou's testimony, apparently persuaded the Hearing Officer that Respondent, in fact, did know prior to Charles Rysavy being hired by the District that he was seeking a position on the Dredge.
As stated by the court in Heifetz v. Department of Business Regulation, Division of Alcoholic Beverages & Tobacco, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985):
It is the hearing officer's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence. State Beverage Department v. Ernal, Inc., 115 So. 2d 566 (Fla. 3d DCA 1959). If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other.
It is not our function to reweigh the evidence as long as there is competent substantial evidence to support the Hearing Officer's findings as there is here. Inasmuch as the Hearing Officer fulfilled her function of weighing the evidence, judging the credibility of the witnesses, and drawing permissible inferences from the evidence, we are not free to supplement her findings and we decline to do so. As the Court also stated in Manasota 88, Inc. v. Tremor, 545 So. 2d 439 (Fla. 2d DCA 1989):
Agency fact-finding independent of and supplementary to D.O.A.H. proceedings has been specifically disapproved. See e.g. Friends of Children v. Department of Health and Rehabilitative Services, 504 So. 2d 1345 (Fla. 1st DCA 1987).
Respondent's exception is rejected.
3. Respondent excepts to the Hearing Officer's conclusion that Respondent violated Section 112.313(6). He claims that Charles Rysavy was qualified for the position of deck hand and dredge operator. He argues that because Section 116.111, Florida Statutes, can not be considered in determining that Respondent violated Section 112.313(6), the Hearing Officer was required to find that, at the time that Respondent spoke with Captain DeCou, he knew that Charles Rysavy did not have the necessary qualifications for the position for which he was being hired. He argues that without knowledge of Charles Rysavy's lack of qualifications for the position, it cannot be shown that Respondent intended to secure a special privilege or benefit for his son or that he acted for the purpose of benefitting him. For the reasons stated in paragraph 1 above, Respondent's exception is rejected.
Respondent also excepts to the Hearing Officer's Findings of Fact Nos. 6 and 7. For the reasons stated in paragraph 2 above, these exceptions are rejected. As stated above, it is the function of the hearing officer to resolve conflicts, to judge credibility of witnesses, to draw permissible inferences from the evidence, and to reach ultimate findings of fact based on competent substantial evidence, as she did here. It is not our function to reweigh the evidence as there is competent substantial evidence to support the Hearing Officer's findings. Inasmuch as the Hearing Officer fulfilled her function of weighing the evidence, judging the credibility of witnesses, and drawing permissible inferences from the evidence, Respondent's exceptions are rejected.
4. Respondent excepts to the Hearing Officer's utilization of Section 116.111, Florida Statutes (Supp. 1987), in concluding that he acted "corruptly" within the meaning of Section 112.313(6), Florida Statutes. He argues that in order to sustain the Hearing Officer's conclusion that Respondent's actions were inconsistent with the proper performance of his public duties, we must find that Respondent acted in contravention of accepted policy, and since the Hearing Officer found that the District did not have a policy, even if Respondent did advocate the hiring of his son, a violation of Section 112.313(6) cannot be found.
Initially, we note, contrary to Respondent's assertion, that the Hearing Officer utilized Section 116.111 to find that Respondent's actions were inconsistent with the proper performance of his public duties, not that he acted "corruptly.". Her conclusion that he acted with "wrongful intent" and thereby "corruptly" was inferred from his lack of candor, and forthrightness in having Captain DeCou inform Charles that he was being hired, and with respect to his telephone conversations with two of the Board members, and in his memorandum to the Board members.
For the reasons stated in paragraph 1 above, Respondent's exception is rejected.
Upon review of the record before us, we conclude that the findings of the Hearing Officer are based upon competent substantial evidence and that the D.O.A.H proceedings complied with the essential requirements of law. Therefore, 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.
Accordingly, the Commission on Ethics finds that the Respondent violated Section 112.313(6), Florida Statutes, by arranging for the employment of his son with the District, and did not violate Section 112.313(6), Florida Statutes, by pressuring Captain DeCou and members of the District to rehire his son and to make payments to him.
The Hearing Officer recommended that Respondent be required to pay a civil penalty of $1,000.00 restitution and that he be publicly censured and reprimanded. We find her recommendation to be appropriate.
Pursuant to Sections 112.317(1) and 112.324(4), Florida Statutes, it is the recommendation of the Commission on Ethics that the Respondent be publicly censured and reprimanded and that a civil penalty in the amount of $1,000 be imposed against him.
ORDERED by the State of Florida Commission on Ethics meeting in public session on Thursday, December 1, 1994.
R. Terry Rigsby
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, P.O. DRAWER 15709, TALLAHASSEE, FLORIDA 32317-5709 (physical address at 2822 Remington Green Circle, Suite 101); AND BY FILING A COPY OF THE NOTICE OF APPEAL ATTACHED TO WHICH IS A CONFORMED COPY OF THE ORDER DESIGNATED IN 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: Mr. Andrew B. Potter, Complainant
Mr. Sam Goren and Mr. Leonard Rubin, Attorneys for Respondent
Mr. Marty Moore, Commission Advocate
Honorable Susan B. Kirkland, Hearing Officer
Division of Administrative Hearings